Friday, February 6, 2015
Two Appeals Panels Reverse Anti-SLAPP Judgments
By a MetNews Staff Writer
Neither the taking of property through an allegedly rigged foreclosure sale, nor an attorney assertedly using information against a former client gained during the representation, constitutes “protected” activity, the Court of Appeal for this district held yesterday in separate decisions, reversing judgments based on the granting of anti-SLAPP motions.
Both opinions were unpublished.
Presiding Justice Norman Epstein wrote for Div. Four in ordering reinstatement of an action against Sheldon Lewenfus, alleged co-conspirator of, and co-defendant with, Santa Monica attorney Neil M. Howard. The action was filed by Ana Vaca.
Howard, though he had represented Vaca in numerous actions in the past, acted on behalf of her brother in suing her for misappropriation, obtaining a $158,565.89 judgment.
According to averments in the complaint, Howard secured from Los Angeles Superior Court Judge Mary Thornton House an order for the seizure and sale of Vaca’s home; he did not disclose to House that Vaca’s brother had told him not to take that action; the home was sold with Howard failing to make a credit bid on behalf of his client; Lewenfus bought for $10,000 property worth about $500,000.
His was the only bid.
Vaca sued and Lewenfus made an anti-SLAPP motion on the ground that the activities stemmed from Howard’s exercise of his free speech a petitioning right. Los Angeles Superior Court Judge Debra K. Weintraub granted the motion, reasoning that Lewenfus might simply have made a “fortunate” purchase.
She awarded him awarded him $23,961 in attorney fees.
“We conclude the gravamen of the complaint—which targets the alleged fraudulent suppression of bids at a court-authorized sale—does not arise from protected activity, even though it occurred against the backdrop of protected petitioning activity.”
The jurist went on to say:
“Although the sheriff’s sale of Ana’s residence was preceded by protected petitioning activities—Howard’s petitioning for issuance of the court orders necessary for the sale—the gravamen of the complaint attacks the fraudulent suppression of bids, particularly by the judgment creditor, in order to facilitate the pre-arranged sale to Lewenfus for an inadequate price. We conclude that the conduct at issue, the fraudulent suppression of bids at a sheriff’s sale, does not arise from protected petitioning activities.”
The case is Vaca v. Lewenfus, B249885.
Nick A. Alden and Aleksey Sirotin of the Law Office of Nick A. Alden were attorneys for Vaca. Timothy L. Neufeld and Yuriko M. Shikai of Neufeld Marks represented Lewenfus.
Also filed yesterday was an opinion in Bekeris v. Denis, B251758. The decision, decided by Div. One, reverses a judgment awarded to a defendant by Los Angeles Superior Court Judge Ramona G. See.
Raymond Bekeris sued Torrance attorney Stanley Denis for allegedly wrecking a settlement by conveying to a client information he had acquired about Bekeris (the dissolved status of his real estate company) in the course of representing him earlier.
Acting Justice Helen Bendix, a Los Angeles Superior Court judge sitting on assignment, wrote:
“Bekeris alleges that Denis violated Business and Professions Code section 6068, subdivision (e)(1), which provides that attorneys have a duty ‘[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.’ Bekeris also alleges that Denis violated rule 3-310(E) of the State Bar Rules of Professional Conduct, which provides that an attorney ‘shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.’
“Even though petitioning activity may be involved in a cause of action, the anti-SLAPP statute does not apply to claims against a former attorney when the gravamen of the claims is that the former attorney breached fiduciary obligations owed to the client.”
“The pleadings and declarations reveal that Bekeris’s fraud claim does not arise from Denis’s acts in furtherance of a right of petition or free speech, but instead from his alleged breach of his duty of loyalty to his former client in order to champion the adverse interests of his new client.”
Bekeris, a non-attorney, and Denis each appeared in pro per.
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