Wednesday, July 19, 2017
C.A. Reverses Denial of Law Firm’s Anti-SLAPP Motion
Judge Barbara Ann Meiers Had Granted Motion, Then Denied It 11 Months Later;
Appeals Court Finds Her Initial Inclination Was Right
By a MetNews Staff Writer
The Court of Appeal for this district yesterday ordered that a cause of action against a law firm based on it seeking its legal fees be dismissed under the anti-SLAPP statute.
Douglas A. Linde and The Linde Law Firm were sued by a former client who had a propensity for suing and for switching lawyers.
One of her four causes of action was for abuse of process. It was predicated on the lawyers advising a successor law firm of a lien it had on the settlement which that successor firm secured, and asking, in a letter, for $69,146.55.
On Nov. 7, 2014, the judge dismissed that cause of action under the anti-SLAPP statute, but in Oct. 15, 2015, reversed herself, on her own motion, in a 16-page ruling. The judge is Los Angeles Superior Court Judge Barbara Ann Meiers.
Div. One of the appeals court, in an unpublished opinion by Presiding Justice Frances Rothschild, said Meiers got it right the first time.
The former client, fitness coach Lauren Kattuah, had engaged the services of Lindt and his firm, located on the Sunset Strip, in 2012. They took over three cases from another firm, including a premises liability case.
The retainer agreement provided that if Kattuah discharged the Lindt lawyers, they would be entitled to receive, out of any eventual recovery, recompense for costs and the value of their services, at $295 an hour.
When the premises liability case was settled for $180,000 in 2013, the Lindt form advised the new lawyers in the case of its lien, and asked for its fees.
That, Kattuah contended, constituted abuse of process.
Both Prongs Met
Agreeing with the defendants that Meiers erred in denying the anti-SLAPP motion, Rothschild found both prongs of 425.16 are met: the action stems from protected activity, and the plaintiff cannot show a probability of prevailing.
As to the protected nature of the letter, Rothschild said:
“Except in extreme cases, such as when a letter constitutes extortion as a matter of law, attorney demand letters are protected activity because they are made in preparation for or in anticipation of litigation….There is nothing about the Linde attorneys’ letter to suggest that it is anything other than an ordinary demand letter. Consequently, sending the letter constituted protected activity.”
With respect to Kattuah’s ability to show a probability of winning on the cause of action, the jurist wrote:
“Kattuah has failed to meet this burden because the misdeeds she alleges the Linde attorneys committed are protected by the litigation privilege….Actions protected by the litigation privilege provide absolute immunity from tort liability….The privilege applies to causes of action for abuse of process, even if that means narrowing the scope of the tort of abuse of process…, and it extends to cover actions taken prior to litigation.”
Meiers’s 2015 decision, in denying the anti-SLAPP motion she previously granted, centered not on whether the demand letter was protected activity, but whether the filing of a lien notice with the court was protected. She said in her ruling:
“The legislative history of CCP 425.16 and its successor statutes clearly reflects that the legislature quickly became concerned abuse abuses of the anti-SLAPP statute shortly after its passage—with good reason. This is an illustrative case where the grant of the defendants’ motion never had the prospect of changing anything about the case. Would it eliminate an exposure for tort liability? No. Would it remove facts from the evidence to be produced in trial? No. Would it eliminate exposure for liability based on exactly the same facts as would be before the court as a part of the breach of fiduciary duty cause of action and/or on the issue of malice for punitive damages? No. Under these circumstances, there is no benefit to the court or the parties from the filing of such an anti-SLAPP motion—other than the fact that a moving party is enabled by such a filing to generate attorney fees at the other party’s expense because of some obvious or technical defect in a claim, which the court notes a Plaintiff is precluded from fixing, even though the outcome of the motion would change nothing about the case. Such a motion in this court’s view is frivolous.”
The case is Kattuah v. The Linde Law Firm, B269560.
Aren Kavcioglu represented the defendant lawyers and Kattuah was in pro per.
Other causes of action in the case remain to be tried.
Copyright 2017, Metropolitan News Company