Wednesday, May 9, 2018
Court of Appeal:
Urging Man Not to Pay Lawyer Is Not Protected Conduct
Anti-SLAPP Order Reversed to the Extent It Insulates Advice to Ignore Lawyer’s Bills
By a MetNews Staff Writer
The Fourth District Court of Appeal yesterday reversed an order striking an entire cause of action for intentional interference with contractual relations as a SLAPP, declaring that that to the extent it’s alleged that a client was counseled not to pay his former attorney, the conduct is not protected.
Writing for Div. Three, Justice Thomas M. Goethals said with respect to the purported advice to leave the bills for legal services unpaid:
“Unlike the other conduct alleged in the complaint, such conduct, if committed, is not ‘protected activity’ under the anti-SLAPP statute. Since this is a separate and distinct theoretical basis for the intentional interference claim, it must survive the anti-SLAPP motions.”
The plaintiff in the action is Kerry L. Sorensen, a Tustin attorney who practices family law. Sorensen represented Paul Leone in an action over personal property brought by Connie McHugh.
The defendants are Stephen A. Madoni, a Newport Beach attorney who handles civil and business litigation, and Charles McHugh, a co-defendant in the action brought by Connie McHugh.
Allegations of Complaint
According to the complaint, Madoni communicated with Leone, notwithstanding knowledge that he was represented by counsel; that Madoni, Leone and Charles McHugh held a meeting without Sorensen’s knowledge; that Leone hired Madoni to replace Sorensen as his lawyer; that the action was settled a short time later; and that Madoni and Charles McHugh advised Leone not to pay Sorensesen.
Sorensen filed an anti-SLAPP motion, as did Charles McHugh. Elizabeth Olsen, a temporary judge for the Orange Superior Court, granted the motion, in full.
Goethals cited the California Supreme Court’s 2016 determination in Baral v. Schnitt that an anti-SLAPP motion will lie as to only part of a cause of action. He said that while most of the cause of action for intentional interference with contractual relations satisfied the initial requirement of the anti-SLAPP statute, Code of Civil Procedure §425.16—that the conduct stem from protectected speech or petitioning—part of it didn’t.
He wrote, in an unpublished opinion:
“Though pled as a single cause of action, …each means whereby Madoni and Charles [McHugh] allegedly induced Leone to break his contract with Sorensen is a stand-alone claim. Thus, the alleged wrongful, but unprotected, act of inducing Leone not to pay the amount he was contractually obligated to pay Sorensen for legal services already rendered may be separated from the remaining allegations, and that claim remains viable.”
Sorensen argued that an anti-SLAPP motion was unavailable to the defendants based on the California Supreme Court’s 2006 prouncement in Flatley v. Mauro that criminal conduct is unprotected. He pointed to Business and Professions Code §6128 which provides:
“Every attorney is guilty of a misdemeanor who…: [¶] (a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.”
No Criminal Conduct
“Here, Sorensen does not make any connection between section 6128(a) and the alleged actions by Madoni and Charles [McHugh]. Moreover, we fail to find any evidence of an ‘intent to deceive the court or any party.’ Sorensen, the subject of the alleged deception, was an attorney handling the property matter on Leone’s behalf, not a ‘party’ to the pending litigation.”
Communications with respect to the litigation brought by Connie McHugh were protected, Goethals said, proceeding to the second prong of the anti-SLAPP statute: whether the plaintiff can show a probability of prevailing. He said Sorensen did not even try to make such a showing, relating:
“Sorensen fails to meet his burden of demonstrating that these claims have the requisite merit. Apparently choosing to rely on his argument that the anti-SLAPP statute does not apply because of the Flatley rule, Sorensen makes no attempt on appeal, and made none below, to demonstrate any probability of succeeding on the merits. Accordingly, the trial court appropriately granted the anti-SLAPP motions as to the intentional interference with contractual relations claims grounded in the alleged inducement of Leone to (1) enter into a settlement agreement without Sorensen’s knowledge or consent and (2) to substitute Madoni into the civil action as his attorney of record.”
The case is Sorensen v. Madoni, G054440.
Stefanie T. Cover joined Madoni in arguing the case on appeal. Sorensen represented himself.
There was no appearance for Charles McHugh.
Copyright 2018, Metropolitan News Company