Metropolitan News-Enterprise


Friday, July 31, 2015


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Legal Malpractice Action Was Not a SLAPP—C.A.


By a MetNews Staff Writer


The First District Court of Appeal has held that a malpractice suit against an attorney was not subject to the anti-SLAPP statute on the theory that the suit against her by a former client was in retaliation for her filing a lien for attorney fees in an underlying action.

Walnut Creek labor and employment lawyer Nancy Balles filed the lien after her client, William Dougherty, who fired her on the eve of a jury verdict in his action against a former employer. The verdict was for $67,218.

Balles did not bring an action to collect fees, but Dougherty did sue Balles on various theories. Her anti-SLAPP motion was based on the contention that his claims arose from her “petitioning activity” in filing the lien.

Contra Costa Superior Court Judge Laurel S. Brady granted the motion to the limited extent of excising from the complaint any references to the lien.

In an unpublished opinion filed Monday and made public a day later, Div. Four affirmed the denial of the anti-SLAPP motion, while vacating the portion of Brady’s order trimming allegations from the complaint.

Right to Petition

Presiding Justice Ignazio J. Ruvolo explained that the “dispositive issue in this appeal is whether Balles met her burden to show plaintiff’s causes of action arose from protected activity,” which includes exercise of the rights of free speech or to petition.

“If Balles failed to make that showing, the anti-SLAPP statute does not apply and the trial court should have denied Balles’s motion without striking any allegations, or considering the merits of plaintiff’s claims,” the jurist wrote.

He agreed that filing a lien constitutes petitioning, but found a lack of a link between the petitioning by Balles and the lawsuit against her. Ruvolo wrote:

“[T]he principal thrust or gravamen of the acts complained of in plaintiff’s complaint derive from the parties’ private dealings with each other as attorney and client, and are based on Balles’s professional duties and responsibilities in carrying out that relationship. For example, in plaintiff’s negligent misrepresentation and fraud claims, he asserts that Balles ‘misrepresented that she had adequate experience’ to take the case to trial, and ‘falsely represent[ed]’ that Plaintiffs economic damages and/or case value was in excess of the amount Plaintiff paid to and/or was indebted’ to pay Balles in attorney fees. In his claim for professional negligence, plaintiff claims Balles bleached her duty to represent him in the underlying action according to professional standards. In his claims for breach of contract and breach of the covenant of good faith and fair dealing, plaintiff alleges that the parties’ contractual fee agreement ‘was unconscionable in that it provided for Balles to collect an excessive fee.’ ”

Second District Opinion

Ruvolo noted that the decision was consistent with an opinion rendered last year by this district’s Court of Appeal on Drell v. Cohen. There, Justice Elizabeth Grimes of Div. Eight said:

“When a cause of action involves both protected and unprotected activity, the court looks to the gravamen of the claim to determine if the claim is a SLAPP….Protected conduct which is merely incidental to the claim does not fall within the ambit of [the anti-SLAPP statute].”

In that case, a settlement check was made payable to the plaintiff and his former attorneys, Bob M. Cohen and Bob M. Cohen and Associates Law Corporation. The current attorney, sole practitioner Michael Drell, brought an action for declaratory relief as to how the fees were to be allocated.

Cohen and his firm filed an anti-SLAPP motion, asserting that the action stemmed from the assertion of an attorney-fee lien in a demand letter. Los Angeles Michael L. Stern denied the motion, and an appeal ensued.

“We agree with the trial court that this lawsuit does not arise from protected activity,” Grimes wrote.

She reasoned:

“The complaint here did not allege defendants engaged in wrongdoing by asserting their lien….[T]he complaint does not seek to prevent defendants from exercising their right to assert their lien.”

Although Drell was filed as a published opinion on Dec. 5, 2014, it was not cited by attorneys for Dougherty until oral argument on April 21. The court permitted additional briefing to address the case, and both sides submitted briefs.

While finding that Brady should have denied the anti-SLAPP motion outright, based on the alleged conduct not being protected, Ruvolo additionally took issue with her having stricken portions of the complaint.

He acknowledged that “there is case law which supports the partial striking of a cause of action under the anti-SLAPP statute, but declared:

“[E]ven in cases where the cause of action targets both conduct protected by the anti-SLAPP statute and unprotected conduct (a mixed cause of action), we do not believe the anti-SLAPP statute authorizes the striking of discrete allegations within a cause of action. We agree with the line of cases which have held that the anti-SLAPP statute authorizes a court to strike a cause of action, but unlike an ordinary motion to strike…it cannot be used to strike specific allegations within a cause of action.”

The case is Dougherty v. Nancy Balles, A140722.


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