Metropolitan News-Enterprise


Tuesday, December 18, 2007


Page 1


C.A. Reinstates Malicious Prosecution Claim Against Law Firm

New Counsel May Be Held Responsible for Unsupported Allegations in Prior Pleading, Divided Panel Says


By STEVEN M. ELLIS, Staff Writer


A law firm that entered a case well after it was underway and played a limited role may still be the subject of a malicious prosecution action, the Fourth District Court of Appeal ruled yesterday.

Partially reversing an order of San Diego Superior Court Judge Jay M. Bloom, Div. One ruled that the law firm of LeFave & Rice’s late entry and limited role in a suit by a tenant against her former landlord for failure to maintain apartments in a habitable condition was not sufficient to insulate the firm from a subsequent malicious prosecution action by the landlord because the underlying complaint pled numerous unsupported causes of action.

Writing for the majority, Justice Cynthia Aaron said that Sycamore Ridge Apartments LLC had presented sufficient evidence to withstand an anti-SLAPP motion filed by LaFave because the firm, by associating into the case, became the proponents of all of the tenant’s claims, and had an obligation to take immediate steps to dismiss claims it knew or should have known were without merit.

Assertions Insufficient

As a result, Aaron said, LaFave’s assertions that it had a limited role, lacked input in deciding when and what to file, and believed that the lawsuit was not being prosecuted by malice or ill will were insufficient to withstand Sycamore’s prima facie showing that the firm lacked probable clause to pursue the tenant’s claims.

However, in a sharp dissent, Justice Richard D. Huffman complained that the majority was adopting a principle whereby an attorney would be charged with knowledge of defects in a case “at the very moment of a formal appearance.”

“I cannot accept the proposition that a lawyer who associates into ongoing litigation to provide a limited service and does nothing else can be said to have ‘pursued’ a malicious prosecution,” he said. “[T]here must be some evidence of conduct other than signing an association of counsel form before one acquires liability for the acts which have gone before.”

The case arose after another tenant of the apartment complex contacted the law firm of Naumann & Levine LLP to complain about the complex’s conditions. According to the Court of Appeal, an investigation allegedly revealed high airborne readings of aspergillus/penicillium spores, maintenance deficiencies, roof leaks, vermin infestations, and flying termites at the complex.

Unsolicited Letters

The Naumann firm sent unsolicited letters to tenants of the complex, including contingency fee agreements to be signed and returned by those who wished to be represented in future litigation, and ultimately filed a complaint against the complex on behalf of 45 individual plaintiffs, setting forth 18 causes of action arising out of the allegations of poor living conditions and unfair business practices.

One of the tenants included in the litigation was Shirley Powell, who indicated that she had suffered health problems as a result of living in the apartment. However, when the complex sent interrogatories to Powell regarding the alleged health problems, she failed to indicate any mental or emotional distress that she had suffered, or any other breaches in her rental agreement that rendered the apartment “unsuitable to live in.”

Nevertheless, the Naumann firm filed a statement of damages which included $20,000 in damages for emotional distress, $2,000 for destruction of property, and $50,000 in punitive damages on Powell’s behalf.

The LaFave firm then joined the action by making an appearance on behalf of the plaintiffs on Oct. 5, 2004, after having previously filed an association of counsel firm with the court. The firm claimed to have joined to provide assistance only with regard to the mold exposure aspect of the litigation.

Powell, who by that time had missed two scheduled depositions, decided to dismiss her portion of the case shortly thereafter.

Almost one year later, Sycamore filed a complaint for malicious prosecution against both the Naumann and LaFave firms, as well as individual attorneys, alleging that they had filed and maintained Powell’s portion of the suit in bad faith, maliciously, and without probable cause. The defendants both filed special motions to strike under the state’s anti-SLAPP statute, with the LaFave defendants citing their late involvement, their limited participation, and their lack of direct contact with Powell.

The trial court denied the Naumann defendants’ motion, ruling that their was a triable issue as to whether they had probable cause to prosecute Powell’s claims, but granted the LeFave defendants’ motion after finding no evidence that they had participated in the lawsuit.

On appeal, all three members of the court voted to affirm the trial court’s decision as to the Naumann defendants. However, the panel reversed the trial court’s decision that the LaFave defendants could not escape potential liability because the entered the case late, and only shortly before it was dismissed.

“Before agreeing to become attorney of record in a pending case, an attorney should, at a minimum, be familiar with his client’s claims and should have made a preliminary determination whether probable cause exists to support the asserted claims or defenses,” Aaron said.

Counsel for Sycamore did not return calls seeking comment.

Robert F. Semmer, counsel for LaFave, called the majority’s opinion “very problematic in terms of exposure for associating attorneys.” He said that his client was still reviewing his options in terms of how to proceed.

Aaron was joined in her opinion by Justice Alex C. McDonald.

The case is Sycamore Ridge Apartments LLC v. Naumann, 2007 S.O.S. 7334.


Copyright 2007, Metropolitan News Company