Metropolitan News-Enterprise

 

Thursday, October 18, 2018

 

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Request for Declaration As to Lien Priority Wasn’t a SLAPP—C.A.

 

By a MetNews Staff Writer

 

The Court of Appeal for this district has said that a request for a declaration that the plaintiff’s judgment lien from a malicious prosecution case has precedence over the defendants’ attorney’s lien was not a SLAPP, but that the portion of the suit seeking a declaration that the attorney’s lien violated the Rules of Professional Conduct should be stricken.

The unpublished opinion, filed Tuesday, was written by Justice Brian M. Hoffstadt of Div. Two. It affirms in part and reverses in part the order by then-Los Angeles Superior Court Judge Rita Miller, now a private judge.

The plaintiff, Peaches N. Jensen, brought a malicious prosecution action against her former business partner, Perry Segal, over an ill-fated lawsuit he had instituted against her after the two had a falling out. Segal and his company retained attorney Henry J. Josefsberg of Los Alamitos to aid in their defense, and granted the lawyer various liens against their recovery and accounts receivable as payment.

After obtaining a judgment lien against Segal and his company, Jensen brought the present action against them and Josefsberg seeking declaratory relief on her lien’s priority over the attorney’s and a determination of whether his liens fall afoul of Rules of Professional Conduct, rule 3-300, which governs attorney-client transactions.

First Request

Hoffstadt agreed with Miller that the activities underlying the request for a determination of lien priority did not arise from protected conduct. He cited the opinion in Drell v. Cohen (2014), in which Div. Eight of this district’s Court of Appeal had addressed the matter of when a challenge to an attorney’s lien is protected activity.

The jurist wrote:

“The cases distinguish between causes of action that challenge the right to assert, or the validity of, a lien for attorney’s fees (which, because they question an attorney’s right to assert or to enforce such a lien as part of his representation in a case, constitute protected activity), and those that seek a declaration of rights regarding the priority of such a lien vis-à-vis other liens (which, because they do not question the attorney’s right to assert or to enforce such a lien, do not constitute protected activity).”

He continued:

“Applying this law, Jensen’s chief claim for declaratory relief is not based upon protected activity….Except for the ‘subsidiary’ declaratory relief claim…, Jensen at no point questions Josefsberg’s right to assert his liens for attorney’s fees or questions the validity of those liens. Instead, she takes the validity of Josefsberg’s liens as a given and asks the court to declare her liens to be ahead of Josefsberg’s in line.”

‘Subsidiary’ Request

The jurist went on to say:

“Jensen’s subsidiary claim for a declaration as to whether Josefsberg’s May 2012 attorney’s fees lien is ‘lawful and enforceable’ under rule 3-300 of the California State Bar Rules of Professional Conduct is an assertion that Josefsberg ‘engaged in wrongdoing by asserting [his] lien’ and ‘seek[s] to prevent [him] from exercising [his] right to assert [that] lien.’…Accordingly, under Drell, this declaration constitutes protected activity.”

He noted that Jensen, in order to meet the second prong of the anti-SLAPP statute, would need to make a showing of facts sufficient to sustain judgment in her favor.

“This, she cannot do,” he continued. “That is because one litigant has no standing to challenge a violation of rule 3-300 suffered by another litigant.”

Although the court ruled on the anti-SLAPP motion, it did so despite the motion being moot due to a remand after an appeal in the malicious prosecution action. Hoffstadt noted that the verdict had been affirmed, and after remand in that case the motion to dismiss might well be brought again.

The case is Jensen v. Josefsberg, B286094.

Josefsberg represented himself and his clients on appeal. Yvonne M. Renfrew of Los Angeles was counsel for Jensen.

 

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