Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2008-00086000- CU-PN-CTL Charles R. Hayes, Judge.
BENKE, Acting P. J.
This case presents a somewhat novel twist on the application of a special motion to strike, Code of Civil Procedure section 425.16, to a legal malpractice action initiated by a client against the client's former attorney(s). In the "typical" scenario, the attorney files an anti-SLAPP motion in response to the former client's legal malpractice action, contending that lawsuit arose out of protected activity within the meaning of section 425.16. As we discuss post, in the vast majority of these cases the courts have found the anti-SLAPP statute does not apply.
All further statutory references are to the Code of Civil Procedure unless otherwise specified. "SLAPP is an acronym for 'strategic lawsuit against public participation.' " (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
Here, however, in response to the legal malpractice action filed by plaintiff and cross-defendant John Masten (appellant) against defendants Miller, King & James, LLP, David D. Miller (Miller) and Patricia I. James (James) (together sometimes collectively referred to as respondents), his former attorneys cross-complained against appellant. In their cross-complaint, respondents alleged appellant negligently and intentionally misrepresented certain facts in the course of their representation of him in his medical malpractice action titled John Masten v. Clayton Whiting, M.D. et al., San Diego Superior Court case No. GIC 858187 (medical malpractice action).
Appellant, in turn, filed an anti-SLAPP motion against respondents. Appellant argued the two claims in respondents' cross-complaint arose entirely out of petitioning activity and statements made in connection with a judicial proceeding (e.g., the medical malpractice action), and thus were subject to section 425.16. Appellant also argued respondents could not satisfy their burden to show a "probability of success" on their claims. The trial court denied the motion, and appellant appeals.
As we explain, we conclude appellant's anti-SLAPP motion was properly denied because the main focus of the acts complained of in the cross-complaint does not arise from protected activity within the meaning of section 425.16, subdivision (b).
FACTUAL AND PROCEDURAL BACKGROUND
In October 2006, respondents became the attorneys of record in appellant's medical malpractice action. That action was based on appellant's emergency room visit to Scripps Mercy Hospital (SMH) on December 17, 2004, when he claims Dr. Whiting failed to recognize he was having a heart attack. The following day, appellant again went to the SMH emergency room complaining of significant chest pressure. Following an extensive cardiac workup, it was determined that appellant had previously suffered a heart attack. Appellant subsequently underwent a triple bypass surgery. Appellant alleged in his medical malpractice action that Dr. Whiting's failure to diagnose his heart attack on December 17, 2004, left him in poor health, disabled and with a damaged and "weak[ened] heart."
In their cross-complaint, respondents allege that appellant suspected he had a heart attack on December 14, 2004. However, Dr. James R. Hemp, M.D., appellant's cardiac surgeon, instead believed appellant suffered a heart attack approximately two weeks prior to December 14, 2004. Respondents allege that a retained expert, Kenneth Corre, M.D., informed Miller on Thanksgiving Day 2006 that Dr. Whiting's conduct had not fallen below the standard of care. Respondents further allege that based on "the expert opinions of three emergency room physicians" and the cardiac surgeon, they could not successfully oppose Dr. Whiting's motion for summary judgment, which motion was pending before respondents substituted into the case on appellant's behalf.
Respondents allege that Miller informed appellant on November 29, 2006, that Dr. Whiting's motion for summary judgment could not be successfully opposed. Miller told appellant, however, that Dr. Corre suggested appellant should have received a cardiac workup in the months prior to his emergency room visit at SMH.
Respondents allege appellant represented that he had "regularly treated" with Kaiser Foundation Hospitals, Inc. (Kaiser) for eight months preceding his December 17, 2004 visit to the SMH emergency room, that his Kaiser doctors had not ordered him to undergo a cardiac workup (e.g., a treadmill test) in the six months before that visit and that he wanted the case to proceed against Kaiser. Respondents also allege that appellant personally advised Miller at least five times that appellant had medical coverage with Kaiser immediately prior to his visit to the SMH emergency room. Based on such representations, respondents named Kaiser as a defendant in the medical malpractice action.
Respondents allege that after Kaiser was added to the medical malpractice action, appellant stalled in obtaining his medical records from Kaiser, despite their requests that he do so, and that appellant waited until early July 2007 to advise them that he had not treated with Kaiser within six months before his December 17, 2004 emergency room visit. Because of appellant's misrepresentations, respondents allege they continued to work for many months on a meritless case, to their economic detriment.
In June 2008, appellant filed a complaint against respondents for legal malpractice, breach of fiduciary duty and breach of contract by dishonored check (legal malpractice action). Appellant claimed respondents "botched" his medical malpractice action when they allowed the case to be dismissed by way of an unopposed summary judgment motion.
Respondents answered the legal malpractice action and, after being granted leave, brought a cross-complaint against appellant for negligent and intentional misrepresentation, as described ante. Appellant filed an anti-SLAPP motion in response to the cross-complaint, which the trial court denied.
DISCUSSION
A. Section 425.16
"In 1992, the Legislature enacted section 425.16 in an effort to curtail lawsuits brought primarily 'to chill the valid exercise of... freedom of speech and petition for redress of grievances' and 'to encourage continued participation in matters of public significance.' [Citation.] The section authorizes a special motion to strike '[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....' [Citation.] The goal is to eliminate meritless or retaliatory litigation at an early stage of the proceedings. [Citations.]" (Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1395-1396, fn. omitted.)
"Resolution of an anti-SLAPP motion 'requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken "in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue, " as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.' [Citation.]" (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 733.) If, however, the defendant does not demonstrate the initial prong, the court should deny the anti-SLAPP motion and need not address the second step. (City of Riverside v. Stansbury (2007) 155 Cal.App.4th 1582, 1594 (Stansbury).)
A ruling on a special motion to strike under section 425.16 is reviewed de novo. (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.) This includes whether the anti-SLAPP statute applies to the challenged claim. (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 906.)
Furthermore, we apply our independent judgment to determine whether defendants' causes of action arose from acts by plaintiff in furtherance of plaintiff's right of petition or free speech in connection with a "public issue." (See Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 721, disapproved on another ground as stated in Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123, fn. 10; § 425.16, subd. (b)(1).) Only if plaintiff satisfies these two conditions must we then independently determine, from our review of the record as a whole, whether defendants have established a reasonable probability that they would prevail on their claims. (See Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup); HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
B. Protected Activity
To determine whether the respondents' claims in the cross-complaint arise from protected acts, we "examine the principal thrust or gravamen of... [the cross-complaint's] cause[s] of action to determine whether the anti-SLAPP statute applies...." (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519-520.) "Accordingly, we focus on the specific nature of the challenged protected conduct, rather than generalities that might be abstracted from it. [Citation.]" (Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1279.)
"We assess the principal thrust by identifying '[t]he allegedly wrongful and injury-producing conduct... that provides the foundation for the claim.' [Citation.]" (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272 (Hylton).) We must bear in mind that "the 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.]" (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
Here, appellant alleges that respondents' claims against him in the cross-complaint arose from petitioning activity because those claims are "based entirely on communications (statements allegedly made by the client to his attorney[s] during the course of the underlying medical practice [action], i.e, during pending litigation." Specifically, appellant argues that the gravamen of the cross-complaint is appellant's alleged "lie[s]" to respondents about having treated with Kaiser within six months of December 17, 2004. Because, the argument goes, the alleged lies are a form of "communication" that were made during the course of and in connection with judicial proceedings, the alleged lies fall within subdivision (e)(1) and (2) of section 425.16.
By statutory definition, an " 'act in furtherance of a person's right of petition or free speech... 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 legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in... 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." (§ 425.16, subd. (e).)
Appellant's motion in the instant case is somewhat similar to the anti-SLAPP motion at issue in Hylton, supra, 177 Cal.App.4th at page 1264. Hylton sued his former attorney, whom he had hired in connection with a wrongful termination action, alleging the former attorney had breached his fiduciary duty to Hylton by attempting to extract an excessive fee. (Id. at p. 1269.) The attorney's actions allegedly included making false statements to Hylton about Hylton's ownership in company stock, and ultimately inducing Hylton to settle the case, thus triggering a contingency fee that was based on the amount of stock Hylton retained. (Ibid.) The former attorney filed a special motion to strike, claiming section 425.16 applied because the action was based on the attorney's protected petitioning activity, to wit: "[T]he complaint sought to pursue claims that arose from statements made before a judicial proceeding or in connection with an issue under consideration by a judicial body, and therefore the underlying conduct constituted protected petitioning activity within the meaning of the anti-SLAPP statute." (Id. at pp. 1269-1270.)
This court disagreed. Instead, we concluded that "Hylton's claims allude to [the attorney's] petitioning activity, but the gravamen of the claim rests on the alleged violation of [the attorney's] fiduciary obligations to Hylton by giving Hylton false advice to induce him to pay an excessive fee to [the former attorney]." (Hylton, supra, 177 Cal.App.4th at p. 1274.) That is, "[a]lthough petitioning activity is part of the evidentiary landscape within which Hylton's claims arose, the gravamen of Hylton's claims is that [the former attorney] engaged in nonpetitioning activity inconsistent with his fiduciary obligations owed to Hylton...." (Id. at p. 1272.)
In reaching our decision in Hylton, we relied on the reasoning of Freeman v. Schack (2007) 154 Cal.App.4th 719 (Freeman), among other cases. In Freeman, this court rejected an attorney's argument that section 425.16 applied to breach of contract and breach of fiduciary duty claims by former clients against the attorney after attorney undertook to represent those clients and then allegedly abandoned them and represented interests adverse to them in the same and different litigation.
In reversing the trial court's order granting the motion to strike the clients' complaint under section 425.16, we noted that although there "is no doubt plaintiffs' causes of action have as a major focus [the attorney's] actions in representing [the new plaintiff] in [the new lawsuit, ]... the fact plaintiffs' claims are related to or associated with [the attorney's] litigation activities is not enough. '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.' [Citation.]" (Freeman, supra, 154 Cal.App.4th at pp. 729-730.)
Noting that other courts had refused to apply section 425.16 to a client's claim against a former attorney for breach of fiduciary duty (Benasra v. Mitchell Silberg & Knupp LLP (2004) 123 Cal.App.4th 1179) and for legal malpractice (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624), despite the fact the claims against those attorneys followed or was associated with "petitioning activity" on the clients' behalf, we reasoned "[i]t is 'the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.' [Citation.]" (Freeman, supra, 154 Cal.App.4th at p. 727; see also Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1540 [section 425.16 inapplicable to malpractice claim because the client is not suing the former attorney "because the attorney petitioned on his or her behalf, but because the attorney did not competently represent the client's interests while doing so"].)
We also find the reasoning of Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566 (Robles) and Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 807 (Wang), pertinent to our discussion. In Robles, plaintiffs brought an action against their former attorneys and one of their experts hired by their attorneys. Among other things, plaintiffs alleged in their complaint that the expert had testified falsely in his deposition in the underlying case, and asserted causes of action against the expert for negligence and conspiracy to commit fraud. (Robles, supra, 181 Cal.App.4th at p. 571.) The expert moved to strike plaintiffs' complaint under section 425.16.
In rejecting the expert's argument that plaintiffs' complaint fell "comfortably" within the ambit of section 425.16 (Robles, supra, 181 Cal.App.4th at p. 575), the Court of Appeal noted that "[i]f applying the statute were as simple as identifying statements made in the course of litigation, [the expert] would have a successful argument." (Ibid.)Instead, the Court of Appeal concluded the anti-SLAPP statute did not apply, as it refused to insulate the expert's false deposition testimony "from recourse by the very client on whose behalf the statement was made." (Id. at p. 576.)
In Wang, this court ruled that the anti-SLAPP statute did not apply because a fair reading of the acts complained of in the complaint against defendant were carried out by Wal-Mart "in furtherance of its economic interests in implementing the contractual agreement" with plaintiff. (Wang, supra, 153 Cal.App.4th at p. 809.) Because the thrust of the complaint challenged the "manner in which the parties privately dealt with one another, on both contractual and tort theories, "(ibid.) this court concluded the anti-SLAPP statute did not apply to defendant Wal-Mart, despite the fact it pursued governmental approvals and development permits to relocate a street adjacent to parcels of land owned by the parties. (Id. at pp. 809-810 [plaintiff's "causes of action raised only collateral or incidental facts with respect to any conduct falling within the applicable definition in the anti-SLAPP statutory scheme"].)
Here, we conclude the reasoning of Hylton, Freeman, Robles and Wang is instructive to our case. Although respondents' claims in their cross-complaint stem from their representation of appellant in a judicial proceeding and thus are related to litigation activities, we conclude the principal thrust or gravamen of the acts complained of in the cross-complaint derive from the parties' private dealings with each other as attorney and client, devolve out of that contractual relationship and are based on the duties and responsibilities of the parties in carrying out that relationship.
In addition, we note respondents seek damages against appellant for economic detriment they allegedly suffered based on appellant's purported misrepresentations made in the course of that private relationship, and not as a result of any protected activity within the meaning of section 425.16, subdivision (b). (See Wang, supra, 153 Cal.App.4th at p. 809 [plaintiff's "liability theory is the loss of property value, allegedly caused by breach of contract or fraud (or inverse condemnation), rather than damages caused by any protected activity involving speech or petitioning the government"].) As such, we independently conclude the trial court properly denied appellant's anti-SLAPP motion.
Because we conclude appellant failed to satisfy his burden to show the two claims in respondents' cross-complaint arose from protected activity within the meaning of the anti-SLAPP statute, we need not address whether respondents' case meets the minimal merit standard of the second prong of the anti-SLAPP analysis. (See Stansbury, supra, 155 Cal.App.4th at p. 1594; Soukup, supra, 39 Cal.4th at p. 291 [a party need only establish that his or her claim has "minimal merit" to avoid being stricken under the second prong of the anti-SLAPP statute].)
Because appellant failed to carry his burden under the first prong of the section 425.16 analysis, we also need not address the issue of whether his alleged misrepresentations are subject to the litigation privilege in Civil Code section 47. (See Birkner v. Lam (2007) 156 Cal.App.4th 275, 284 [the litigation privilege is irrelevant to a determination of whether a party satisfied the first prong of section 425.16].)
DISPOSITION
The trial court's order denying appellant's anti-SLAPP motion is affirmed. Respondents are awarded their costs of appeal.
WE CONCUR: HUFFMAN, J., McINTYRE, J.