Wednesday, May 25, 2016
Attorney Accused of Shady Conduct Loses Round
Edmon Says Pre-Filing Order Wasn’t Needed in Action Claiming Lawyer-Client Conspiracy
By a MetNews Staff Writer
The Court of Appeal has declared that a trial judge correctly held that an attorney, sued for participation in an alleged massive insurance fraud scheme, was not entitled to the protection of a statute that generally requires leave of the court before filing a complaint in the Superior Court alleging a conspiracy with a client.
Two exceptions to that requirement apply, Presiding Justice Lee Edmon of this district’s Div. Three said in an unpublished opinion, filed Monday. The opinion affirms the action of Los Angeles Superior Court Judge William F. Highberger in overruling the demurrers of Tarzana attorney Robert B. Amidon and denying his motion to strike.
The complaint in the action, by Farmers Insurance, alleges that Amidon and an alleged capper, co-defendant Glenn Sims, “had a practice of preparing inflated and outright sham repair and restoration estimates” in connection with claims by supposed “smoke and ash” victims following wildfires.
At issue was an interpretation of Civil Code §1714.10 which provides, in part:
“No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney’s representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action.”
Farmers had not obtained a pre-filing order; Highberger said it didn’t need to; Edmon and her colleagues agreed.
Exceptions Found Applicable
Edmon—who noted that §1714.10 permits an appeal in the present circumstance—pointed to a portion of the statute limiting its applicability. That portion says:
“This section shall not apply to a cause of action against an attorney for a civil conspiracy with his or her client, where (1) the attorney has an independent legal duty to the plaintiff, or (2) the attorney’s acts go beyond the performance of a professional duty to serve the client and involve a conspiracy to violate a legal duty in furtherance of the attorney’s financial gain.”
“Both exceptions apply here.”
She explained that “Amidon had an independent legal duty to Farmers not to commit insurance fraud” and pointed out that the complaint averred that the lawyer acted to promote “financial gain and/or economic advantage to which [he] would not otherwise have been entitled.”
16 Letter Briefs
Edmon mentioned in a footnote that the parties responded to a request from the court for supplemental letter briefs on two questions, which she set forth. She added:
“We have also considered the numerous letter briefs filed by the parties on other issues during the pendency of this appeal.”
The register reflects the extent of those communications. An entry for May 20, following oral argument, evidences Farmers’ annoyance over the contacts by Amidon, reciting:
“Respondent’s letter dated 5/17/16 re: Appellants continue to bombard this Court with a plethora of motions, applications, and supplemental letter briefs (a staggering 16 filings prior to oral argument, not including routine applications for extension of the briefing schedule). These filings became so voluminous and redundant that eventually, on February 24, 2016, respondents filed a letter brief indicating that they would not address any further pleadings unless directed to do so by this Court. On April 8, 2016, the Court had oral arguments on this matter, at which time it issued a tentative ruling indicating its inclination to affirm the trial court’s order. Since that time, appellants have filed three more supplemental letter briefs (on May 2nd, 9th and 19th), none of which are even remotely relevant to the issues presented in this case. In light of the Court’s tentative ruling, and given the tenor of oral argument, respondents reiterate their position that they will not respond to any further motions, briefs or applications filed by appellants unless the court feels that it needs any further issues addressed and specifically directs respondents to do so.”
Following Monday’s decision, Amidon, that same day, filed a petition for rehearing.
Amidon represented himself, in tandem with Dennis Neil Jones of the Ventura law firm of Myers, Widders, Gibson, Jones & Feingold. Dennis B. Kass and Scott Wm. Davenport of the Los Angeles office of Manning & Kass, Ellrod, Ramirez, Trester acted for Farmers.
Burbank attorney Neil R Anapol is also a defendant in the case, but was not a party to the appeal.
There was a previous published opinion in the case. In 2012, Div. Three, in an opinion by Acting Presiding Justice H. Walter Croskey (since deceased), affirmed Highberger’s rejection of an anti-SLAPP motion by Anapol and Amidon.
The lawyers asserted that their submission of claims to Farmers on behalf of their clients, and their solicitation of those clients, was pre-litigation conduct, protected by the First Amendment right to petition government for redress of grievances.
“[W]e conclude that bald assertions that the claims were submitted with the subjective intent that litigation would follow are insufficient, without more, to constitute prima facie evidence that the insurance claims constituted prelitigation conduct. As the attorneys submitted no additional evidence in this case, they failed in their burden to show that the anti-SLAPP statute applied, and their motions were properly denied.”
Centering on contentions of Amidon—who asserted that routine denial of “smoke and ash” claims by Farmers rendered litigation inevitable, so that presentation of claims was necessarily prelitigation conduct—Croskey said:
“In this case, there is no evidence that Attorney Amidon informed Farmers of his belief that any post-June-2009 claim would be denied; no evidence that the insureds anticipated litigation at the time Attorney Amidon submitted their claims; and no admissible evidence that Farmers informed Attorney Amidon that the claims would be denied so he should proceed directly to litigation. Attorney Amidon relies solely on his self-serving declaration that, in his own mind, at the time he submitted the claims, his mindset was that the claims would likely be denied and litigation would be necessary.”
That opinion notes that the alleged mastermind of the purported scheme was Sims. Setting forth Farmers’ view of the facts, it says:
“Sims was what is known as a ‘catastrophe chaser.’ He travelled the country, following natural disasters. After a disaster, he would advertise in the area for clients, letting them know that he could obtain substantial insurance benefits for them for damages about which they may have been unaware. Sims was not a public adjuster, however, and chose to conduct his business through the use of attorneys.”
That case is People ex rel. Fire Ins. Exch. v. Anapol, 211 Cal App 4th 809.
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