Metropolitan News-Enterprise


Monday, September 19, 2011


Page 1


Court of Appeal Says Lawyer’s Anti-Bias Suit May Be SLAPP

Claim That Legal Group Denied Plaintiff Referrals Because of Her Sex Arose From Judicial Proceeding, Panel Rules




An attorney’s sex discrimination suit against a prepaid legal services plan, which the plaintiff claims referred cases to less experienced male lawyers because she’s a woman, is subject to the anti-SLAPP statute, the Fourth District Court of Appeal ruled Friday.

Div. Two reversed retired a ruling in favor of Danuta Tuszynska, a Riverside sole practitioner admitted to the State Bar in 1981. The court held that her suit arises “in connection with an issue under consideration or review by a...judicial body,”

The court sent the case back to the trial court, with directions that the judge grant the anti-SLAPP motion, absent a finding that the plaintiff is likely to prevail on the merits.

Lawsuit Details

Tuszynska sued the Riverside Sheriffs’ Association, the Riverside Sheriff’s Association Legal Defense Trust, and former plan administrator James Cunningham. Cunningham, who served as executive director of the sheriff’s association from 2003 to 2010, and as the legal defense trust administrator for much of the period between November 2004 and July 2009, is a partner in a San Diego labor law firm.

He was replaced as administrator by attorney Muna Busailah, whose Pasadena firm, Stone Busailah LLP, represented the defendants on appeal, along with Cunningham’s firm, Hayes & Cunningham. Terese M. Oliver represented the plaintiff.

The trust provides representation to members of the association in job-related civil, criminal, and administrative matters in exchange for a monthly fee.

In her papers opposing the anti-SLAPP motion, Tuszynska explained that she was a deputy district attorney for 19 years before entering private practice, and that she was recruited as a legal defense trust panel attorney by Cunningham’s predecessor in 2003. The trust, she said, agreed to pay her $200 hourly for her services.

‘Only Female Trial Attorney’

Despite her success representing plan members, she said, her referrals “dropped almost immediately” when Cunningham—whose firm consists of four male and four female attorneys, according to its website—took over. She said she was the “only female trial attorney” on the panel at the time, and the only panel attorney familiar with the local bar and legal community in Riverside.

Cunningham, she said, “only blamed her” for “losing” a case in which the defendant deputy was convicted on two of 18 counts, and refused to pay her fees for representing the deputy in a new trial motion and during sentencing. A legal defense trust staff member, she alleged, told her that she was not getting cases because “it was still a good old boys club.”

The trust, she claimed, refused to assign her cases, even when the deputies involved specifically asked that she represent them.

The trust argued in support of its motion that the suit arose from protected activity under Code of Civil Procedure Sec. 425.16, specifically the process of determining which attorneys should represent members and whether and to what extent the trust should fund litigation.

Tuszynska responded that the complaint had “nothing to do with the courtroom, nor clients, [nor] pending litigation,” but “focus[es] on what was happening outside the courtroom, at RSA, when [plaintiff] attempted to be treated in the same manner as the male panel attorneys.”

Trial Court Ruling

Retired Fifth District Court of Appeal Justice Kenneth Andreen, sitting on assignment in Riverside Superior Court, sided with the plaintiff, concluding that her alleged “exclusion from appointments” was not protected activity, and that the complaint alleged “a continuing problem” between Tuszynska and Cunningham, rather than free speech or petition activity in connection with a judicial proceeding.

But Justice Jeffrey King, writing for the Court of Appeal, said the trust’s decisions about attorney selection and litigation funding constitute “statements or writings” related to judicial proceedings within the meaning of the statute.

The purported distinction between a suit over discriminatory motive behind the decisions, and one over the communications leading to the decisions themselves, “is untenable in the anti-SLAPP context because it is at odds with the language and purpose of the anti-SLAPP statute,” King wrote. Prior cases, he said, make clear the requirement that the statute be interpreted broadly in order to encourage participation in protected activities.

 The plaintiff’s bias claims, he wrote, are “based squarely on defendants’ attorney selection and litigation funding decisions themselves, and, concomitantly, communications defendants made in connection with making those decisions—regardless of whether defendants had a gender-based discriminatory motive in making their decisions.”

The distinction drawn by the trial court between motive and conduct, he said, “is eminently understandable but erroneous.” A trial judge ruling on an anti-SLAPP motion must “focus...squarely on the defendant’s activity that gave rise to its asserted liability, and whether that activity constitutes protected speech or petitioning, rather than on any motive the plaintiff may be ascribing to the activity.”

The case is Tuszynska v. Cunningham, 11 S.O.S. 5156.


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