Thursday, March 13, 2008
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Court: Suit Against Lawyer Properly Thrown Out as SLAPP
Claim That Client’s Ex-Employee Stole Secrets Protected Because of ‘Anticipated Litigation,’ Panel Says
By Sherri M. Okamoto, Staff Writer
A pleading accusing a lawyer of defaming a client’s former employee by telling customers the plaintiff had misappropriated customer lists and suggesting that they refrain from doing business with the plaintiff lest they be dragged into litigation was properly stricken as a SLAPP, this district’s Court of Appeal ruled yesterday.
Affirming the order granting a special motion to strike, Div. Five held that the letter was a “writing made in connection with an issue under consideration or review by a … judicial body” because it directly related to the employer’s claims against the employee and the employer was seriously and in good faith contemplating litigation against the employee at the time it was written.
West Los Angeles attorney Gregory Chudacoff represented Maxsecurity, Inc. in connection with its dispute with its former employee, Mark Neville. Maxsecurity filed suit against Neville for misappropriating Maxsecurity’s customer lists and related misconduct about four months after it sent Chudacoff’s letter to its customers.
After Neville filed a cross-complaint for defamation, Chudacoff moved to strike the cross-complaint pursuant to the anti-SLAPP statute.
Los Angeles Superior Court Judge Soussan G. Bruguera concluded that the letter was related to the dispute between Maxsecurity and Neville, and was protected petitioning activity under the anti-SLAPP statute. Neville submitted no evidence to establish the probability that he would prevail on the merits of his claim, Bruguera ruled.
The anti-SLAPP statute protects “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body.”
Litigation Privilege
Citing Paul v. Friedman (2002) 95 Cal.App.4th 853, Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, and Contemporary Services Corporation v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, Justice Richard M. Mosk wrote, “These cases stand for the proposition that a statement is ‘in connection with’ litigation under [the anti-SLAPP statute] if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.”
Mosk explained that the recipients of the message do not have to be parties or potential parties to a case, and that the “reasonably relevancy requirement” of the litigation privilege is analogous to the anti-SLAPP statute’s “in connection with” standard.
Citing Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, he further elaborated, just as communications made in anticipation or preparation of an action or other official proceeding before any proceedings have commenced are protected by the litigation privilege, they are “equally entitled” to the benefits of the anti-SLAPP statute.
Incorrect Assumption
However Mosk cautioned that a determination that a statement is protected by the litigation privilege does not resolve whether it is a protected activity under the anti-SLAPP statute. “Both parties and the trial court appear to have assumed that whether a statement is a protected activity… is determined by ascertaining whether the statement is protected by the litigation privilege,” Mosk wrote, “That assumption is not correct because the two statutes are not coextensive.”
Nevertheless he concluded that “[t]he evidence before the trial court in this case established a threat of impending litigation,” and “in the circumstances of this case, the lawyer’s letter to the customers was a ‘writing made in connection with an issue under consideration or review by a … judicial body’ … and therefore covered by the anti-SLAPP statute.”
Neville was represented by Paul Ottosi of Encino and Chudacoff by Julia Swanson of Los Angeles.
Presiding Justice Paul Turner and Justice Sandy R. Kriegler joined Mosk in his opinion.
Copyright 2008, Metropolitan News Company