Metropolitan News-Enterprise


Friday, January 29, 2010


Page 4


Client’s Suit Against Former Counsel, Expert Not a SLAPP, Court Rules


By SHERRI M. OKAMOTO, Staff Writer


The Sixth District Court of Appeal has allowed a lawsuit to proceed against two Salinas attorneys—one of whom has since become a judge—and an expert witness who allegedly entered into a business relationship to market a product addressing the hazards at the center of their clients’ product liability action.

A three-judge panel ruled Wednesday that negligence and conspiracy to commit fraud claims in Virginia Robles’ complaint against the consultant hired by her former attorneys, Thomas Wills and C. Denise Benoit, were not based on communications protected by the anti-SLAPP statute.

Wills, now a Monterey Superior Court judge, and Benoit were retained by the family of John Robles after he was burned to death when his wheelchair ignited while he was occupying it, and the attorneys initiated a wrongful death action in December 2004.

According to Robles’ family, Wills retained Purush Chalilpoyil to provide expert consulting services and testimony, but the day after trial was initially set to begin, told the court that Chalilpoyil had testified falsely in a deposition and requested a continuance to procure another expert witness.

A continuance was granted, but before the new trial date, Robles’ family claimed Wills asked each of them to sign a waiver of any interest in a device Wills wanted to market to address the safety defects in the wheelchair. Wills indicated that he would be working with Chalilpoyil to design and manufacture the device, based on research and information Chalilpoyil had gathered preparing his testimony, the family said.

The family members also alleged the attorney “coerced, forced, and/or wrongly pressured” them to tell the court that they were willing to settle their case for $1 million.

On Jan. 25, 2007, Wills and Benoit withdrew from the wrongful death action and filed a notice of lien for attorney fees. When the settling defendants from that case moved to enforce the settlement, the family said they were unable to find counsel to represent them in opposing the motion and it was granted.

The family subsequently filed suit against Wills, Benoit, and Chalilpoyil, and Chalilpoyil moved to strike the negligence and conspiracy to commit fraud causes of action as strategic lawsuits against public participation.

 Chalilpoyil contended that the negligence claim was based on testimony in the context of a legal proceeding and therefore a protected communication. He argued that the conspiracy cause of action, based on Wills’ solicitation of his work product and their discussions about a prospective business relationship, were similarly protected by Code of Civil Procedure Sec.425.16(e)(2) as well as the litigation privilege.

Monterey Superior Court Judge Timothy S. Buckley declined to issue a special motion to strike the complaint.

On Chalilpoyil’s appeal, Justice Franklin D. Elia said that Buckley properly concluded that the challenged causes of action did not arise from Chalilpoyil’s exercise of his constitutional right of petition or free speech.

Although Chalilpoyil’s allegedly-false deposition testimony was made in the course of a judicial proceeding and the anti-SLAPP statute’s protections extend to litigation-related speech and petitioning activity undertaken on another’s behalf, Elia reasoned, the statute “should not be used to insulate those statements from recourse by the very client on whose behalf the statement was made.”

He explained that the Court of Appeal’s 2006 opinion in Kolar v. Donahue, McIntosh & Hammerton 145 Cal.App.4th 1532 “drew a clear boundary around malpractice actions, rejecting entirely the notion that such lawsuits can be defeated by resort to section 425.16.”

The Kolar court clarified that a plaintiff in a malpractice suit “is not suing because the attorney petitioned on his or her behalf, but because the attorney did not competently represent the client’s interests while doing so,” Elia pointed out.

 The justice also said there was “no reason to create an exception for an expert witness” because Sec. 425.16 does not shield statements made on behalf of a client who alleges negligence in his attorney’s representation or a breach of the duty of loyalty.

He reasoned that the central subject of the fraud cause of action was “conduct outside the litigation—specifically, suppression of information about the defendants’ business relationship—which deprived respondents of the representation for which they had retained the defendants.”

Elia added that the policies underlying the litigation privilege—“in particular, promoting access to the courts and encouraging witnesses to testify truthfully”—would not be served if a party’s expert could shielded from his own negligent or tortious conduct and rejected Chalilpoyil’s attempt to invoke the privilege.

Presiding Justice Conrad L. Rushing and Justice Eugene M. Premo joined Elia in his decision.

The case is Robles v. Chalilpoyil, 10 S.O.S. 465.


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