Tuesday, April 15, 2008
Page 3
Complaint Against Law Firm Held Not Subject to Anti-SLAPP Motion
By SHERRI M. OKAMOTO, Staff Writer
A Los Angeles law firm that billed a disabled conservatee for nearly $300,000 in legal services may be liable for misappropriating its client’s money, the Court of Appeal for this district held yesterday.
In an unpublished opinion, Div. Five affirmed the trial court’s finding that claims against Steven M. Garber & Associates were not subject to a special motion to strike because the plaintiff’s causes of action were not based on the firm’s protected petitioning activities.
Steven M. Garber & Associates represented a 93-year old, disabled widow in amending her trust and powers of attorney, and in obtaining a court order allowing her to access the trust funds. The firm also represented her in opposing a conservatorship petition filed by her nephew, and over the course of two years, billed the client a total of $298,511.55.
The client’s nephew filed suit, alleging that the firm knew its client was not competent to manage her financial affairs or to understand what services it was providing to her, but facilitated her control of and access to trust funds, and then billed her in an excessive amount.
The law firm filed an anti-SLAPP motion, but Los Angeles Superior Court Judge John H. Reid found that the firm was not engaged in protected petitioning activity and denied the special motion to strike.
Writing for the appellate court, Presiding Justice Paul Turner agreed that allegations concerning protected petitioning activity that were merely incidental or collateral to the cause of action did not make the claim subject to a special motion to strike. “[T]he critical point,” Turner wrote, “is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition.”
Here, Turner wrote, the gravamen of the plaintiff’s complaint was that the firm had “unduly influence[ed] an elderly woman to pay over money.” The firm’s petitioning activity on the client’s behalf was the means by which the firm did so, Turner reasoned, but the petitioning activity was collateral to the plaintiff’s claims.
Turner continued: “[T]he target of plaintiff’s cause of action is not the manner in which defendant allegedly facilitated Ms. Sokol’s access to trust funds…but the fact and effect of that control and access.”
Justices Orville A. Armstrong and Sandy R. Kriegler joined Turner on his opinion.
Plaintiff was represented by Gregory R. Ellis and Stuart B. Esner of Esner, Chang & Ellis of Glendale, and San Diego attorney Cheryl Edwards Tannenberg of Kirby & McGuinn.
The law firm was represented by David M. Axelrod and Jeremy B. Rosen of Horvitz & Levy in Encino, and Los Angeles attorney Gary M. Ruttenberg of Bloom & Ruttenberg.
The case is Snyder v. Steven M. Garber & Associates, B198751.
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