Monday, August 4, 2014
C.A. Says Libel Action Against Akin Gump Was a SLAPP
By a MetNews Staff Writer
A libel action by Pacific Palisades attorney John Kirkland and another against the law firm of Akin, Gump, Strauss, Hauer and Feld, LLP was properly scuttled in response to an anti-SLAPP motion, the Court of Appeal for this district has ruled.
San Francisco sole practitioner Douglas Rappaport, formerly with Akin Gump’s office in that city, had written a report for a client, U.S. Aerospace, Inc., in which he concluded that Kirkland “likely violated his professional responsibilities as USAE’s outside general counsel” and “violated his fiduciary duties of loyalty, good faith and care to the Company.”
The report was also critical of Charles Arnold, a former consultant to the company. Arnold was also a plaintiff in the libel action, and Rappaport was a defendant.
Los Angeles Superior Court Judge Richard Fruin granted the defendants’ anti-SLAPP motion and Div. One of the appeals court on Thursday affirmed in an unpublished opinion by Presiding Justice Frances Rothschild.
Both Prongs Satisfied
“We affirm because Rappaport’s allegedly defamatory report to his client was a “written...statement or writing made in connection with an issue under consideration or review by a...judicial body,” satisfying the first prong of the anti-SLAPP statute, Code of Civil Procedure §425.16, Rothschild wrote. She said the plaintiffs failed to show “there is a probability” that they “will prevail on the claim,” satisfying the second prong.
Although no legal proceeding was pending at the time Rappaport wrote his report, the jurist noted, the California Supreme Court has interpreted the statute as extending, like the litigation privilege, to “communications preparatory to or in anticipation of the bringing of an action or other official proceeding.”
Disputing the plaintiffs’ contention that no litigation was imminent, Rothschild said, “the record shows that the USAE officers were seriously considering litigation against plaintiffs if Rappaport’s report confirmed their suspicion of plaintiffs’ wrongdoing.”
The newly confirmed presiding justice also wrote:
“Kirkland and Arnold claim that Rappaport did not make his report in good faith because he was engaged in a plot with the USAE officers who retained him to write ‘a poison-pen letter intended to intimidate the [USAE] board of directors’ into not discharging and suing the officers. ‘Rappaport’s letter was not a good faith analysis by an independent lawyer,’ plaintiffs charge, ‘but an advocacy piece on behalf of an unethical lawyer’s secret constituency.’ This argument fails because ‘good faith’ in the context of the litigation privilege refers to a good faith intention to file a lawsuit, not a good faith belief in the truth of the communication.”
The plaintiffs had no chance of prevailing on the merits, Rothschild said, in light of the litigation privilege, remarking:
“This is a classic case for the application of the litigation privilege because plaintiffs are suing an attorney and his law firm based on confidential legal advice that they supplied to a client in anticipation of litigation.”
The case is Kirkland v. Rappaport, B243607.
Mark A. Vega of Incite Law Group was counsel for Kirkland and Arnold. Alan Jay Weil, Barry G. West, and Steven S. Davis of Gaims Weil West represented the defendants.
Copyright 2014, Metropolitan News Company