Wednesday, February 27, 2008
Court: Anti-SLAPP Statute Applies to ‘Client-Stealing’ Suit Against Attorney
By STEVEN M. ELLIS, Staff Writer
A lawsuit by a local attorney who accused another lawyer of stealing his client is subject to the state’s anti-SLAPP statute, this district’s Court of Appeal ruled yesterday.
Div. Eight affirmed the judgment of Los Angeles Superior Court Judge Elihu M. Berle granting Neil C. Evans’ motion to strike a complaint by the Taheri Law Group—who alleged that Evans improperly solicited one of their clients—because Evans’ communications to the client concerning pending litigation was a protected activity under the law which prevents strategic lawsuits against public participation, and because a lawyer’s advice to a prospective client on pending litigation does not fall within the “commercial speech” exemption to the statute.
The Taheri firm filed suit against Evans, alleging that he knew of its economic relationship with Alexander Sorokurs and his medical corporation, but intentionally interfered with the relationship by improperly inducing Sorokurs to terminate it.
The firm had previously secured a global settlement on behalf of Sorokurs and his medical corporation in three cases in May of 2005, but then told Sorokurs two months later that the plaintiffs in the settled litigation were repudiating the agreement. When the firm failed to produce any proof of the repudiation to Sorokurs upon his request, and told him that the litigation would have to continue, Sorokurs—who had hoped to end the litigation through the settlement agreement—decided to replace the firm with new counsel.
Sorokurs contacted Evans upon the recommendation of one of his patients and—after meeting with him—decided to hire Evans in order to enforce the settlement agreement and otherwise protect his interests.
He advised the firm of his decision to discharge them, and that same day the firm received a letter from Evans notifying it that he was Sorokurs’s new counsel in connection with the matters the firm had previously been handling.
Motion to Strike
Evans moved to strike the firm’s complaint under the state anti-SLAPP statute, asserting that his actions were protected under the litigation privilege set forth in Civil Code Sec. 47(b). He also submitted declarations by himself and Sorokurs stating that Sorokurs had sought out Evans of his own volition.
The declaration further stated that the settlement agreement appeared, on its face, to be fully enforceable, but that the firm pursued motions for attorneys fees and costs which were not in Sorokurs’s best interests rather than seeking to enforce the settlement. It also said that Evans had advised the firm and the parties to the settlement agreement that he was seeking to enforce it, which would have the effect of nullifying attorney fee awards and cost awards that the firm had obtained after the settlement agreement was reached.
The firm opposed Evans’s motion to strike, arguing that the anti-SLAPP statute was not implicated because the action involved “client stealing,” which had “nothing to do with [Evans’s] First Amendment rights….” It also contended that, even if the anti-SLAPP statute were applicable, the exemption in Civil Code Sec. 425.17 for commercial speech would bar its application.
The firm argued that it would prevail in the case, and in support of its position submitted a declaration from Payman Taheri, who described the firm’s representation of Sorokurs, the “tentative” settlement, and the July 2005 repudiation of the settlement. Taheri stated that he “could not enforce the settlement” because “there were no essential terms,” and that he had fully explained the situation to Sorokurs.
Taheri went on to state that Evans “knew of my relationship with Mr. Sorokurs, knew what a great client Mr. Sorokurs would be, took advantage, cornered Mr. Sorokurs and took that client away from me; [Evans] has personally admitted the same to me.” He also submitted a declaration from the firm’s attorney, consisting principally of assertions that Evans stole the firm’s client and that Evans and Sorokurs were “liars.”
Berle granted Evans’s motion, finding that Evans had demonstrated his conduct was protected under the anti-SLAPP statute because it was “privileged communications and communications in the exercise of rights of litigation in a judicial proceeding.” He also found that the firm did not introduce any evidence to establish a prima facie case for its claims and awarded attorney fees of $3,560 to Evans under section 425.16(c).
On appeal, Presiding Justice Candace Cooper wrote to say that Evans’s conduct was protected under the anti-SLAPP statute because the firm’s claims arose out of Evans’s communications concerning pending litigation, and were not barred by the commercial speech exception to the statute.
“The fact that some of Evans’s communications took place while Taheri was Sorokurs’s attorney—communications which Sorokurs says he initiated—is irrelevant to the question whether the lawsuit arises from communications ‘made in connection with an issue under consideration or review by a…judicial body….’
“Taheri’s causes of action arise directly from communications between Sorokurs and Evans about the pending lawsuit against Sorokurs…. [I]t is difficult to conjure a clearer scenario than the case before us of a lawsuit arising from protected activity.”
Cooper also concluded that Taheri’s claims did not fall within the exemption from the anti-SLAPP statute for “commercial speech” under Code of Civil Procedure 425.17(c), which provides that the statute does not apply to causes of action arising from specified claims against business entities involving commercial speech or conduct. Such conduct includes providing services such as legal advice and representation.
Although she conceded that Evans’s conduct “could arguably be viewed as falling within [the exemption’s] scope” if it were read literally, because providing legal advice and representation is a “service,” Cooper said such an interpretation was contrary to the legislative history of the exemption and that it “would serve to thwart the client’s fundamental right of access to the courts, and specifically to the lawyer of his choice.”
“This was not a ‘commercial dispute’ between competing retailers of the sort the Legislature had in mind when it enacted the commercial speech exemption to the anti-SLAPP statute. Under these circumstances, and because of the fundamental right of a client to choose and change his legal representation, we conclude the commercial speech exemption from the anti-SLAPP statute may not be applied to the lawyer’s activity.”
Cooper clarified that the holding did not mean that lawyers were categorically excluded from the commercial speech exemption.
“[T]his is a case in which legal advice to a specific client on a pending matter has occurred contemporaneously with the alleged solicitation of the client,” she wrote. “It is in these circumstances that the commercial speech exemption may not be applied to a lawyer’s conduct.”
Holding that the firm—which had offered no evidence in support of its claim—had failed to establish a probability of prevailing on its claim, the court ruled that Berle had not abused his discretion and partially affirmed his ruling.
However, it reversed Berle’s ruling that Evans—who had represented himself—was entitled to attorney fees.
“[A] party…who is not represented by counsel and who litigates an anti-SLAPP motion on his own behalf may not recover attorney fees under the statute,” Cooper wrote.
Justices Laurence D. Rubin and Madeleine Flier joined Cooper in her opinion.
The case is Taheri Law Group v. Evans, 08 S.O.S. 1246.
Copyright 2008, Metropolitan News Company