Friday, June 12, 2020
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Malicious Prosecution Action Against Lawyer Who Tried Case Not a SLAPP, C.A. Declares
Rubin Rejects Contention That Suit Lacks Minimal Merit Because Attorney Pursued Only the One Cause of Action He Thought Was Supportable
By a MetNews Staff Writer
The Court of Appeal for this district yesterday affirmed an order denying an anti-SLAPP motion filed by an attorney who is being sued for malicious prosecution, rejecting his contention that an action does not lie because he was brought into a case a few weeks before the trial of a cross complaint, and pursued only one cause of action which he had probable cause to believe had merit.
Presiding Justice Laurence D. Rubin of Div. Five wrote the unpublished opinion upholding a decision of Los Angeles Superior Court Judge Holly E. Kendig.
The appellant is Joseph M. Barrett, now of the Century City law firm of Affeld & Grivakes LLP. At the time of the trial of a cross complaint against Michael Reeves and his corporate entity MA3, Barrett—who are now suing him and others—he was an attorney in the law office of Philip Layfield (now awaiting trial on felony charges pending in the U.S. District Court for the Central District of California).
Barrett’s Tactic
The cross-complaint contained nine causes of action. After being assigned to handle the trial, Barrett said in a declaration, he determined to pursue one of the causes of action—breach of fiduciary—which had had been asserted based on Reeves having diverted customers of Finton Construction, Inc., of which he was an owner, to his new company, MA3.
Rubin said the problem was that Barrett failed to communicate that decision to the cross defendants. He wrote:
“On June 15, 2016—more than a month after Attorney Barrett had decided, sub silentio, that he was not pursuing any claims against MA3, and after nearly the entirety of a trial in which MA3 was a party—MA3 moved for a directed verdict. Attorney Barrett said there was no opposition and the motion was granted.
He noted that Reeves prevailed on the cause of action for breach of duty, then moved for dismissal of the other causes of action, and Barrett did not object.
Affirmance Explained
Rubin said there is no dispute that the first prong of the anti-SLAPP statute—that the conduct complained of arose from protected activity—is met and what is at issue is whether Barrett satisfied his burden under the second prong of showing a probability of prevailing on the merits.
“There are three elements of a malicious prosecution action—favorable termination, absence of probable cause, and malice, Rubin recited, observing:
“Attorney Barrett cannot seriously dispute that every cause of action in the cross-complaint was terminated in favor of Reeves and MA3. Thus, the anti-SLAPP motion came down to the other two elements: absence of probable cause and malice.”
Probable Cause
With respect to probable cause, the presiding justice said:
“In his anti-SLAPP motion, Attorney Barrett argued only that the cause of action for breach of fiduciary duty against Reeves was supported by probable cause. He took the position that the remaining causes of action were not relevant because they were not ‘pursued at trial.’ Attorney Barrett did not assert that he had abandoned the other causes of action as meritless, but simply stated that he had chosen not to pursue them to streamline the case.”
The remaining causes of action did matter, Rubin declared, because Barrett “did not take immediate steps to dismiss MA3 or the other eight non-breach-of-fiduciary-duty causes of action alleged against Reeves” and “waited for Reeves and MA3 to go to the time and expense of seeking dismissal themselves.”
The jurist added that “there is sufficient evidence of lack of probable cause for Attorney Barrett’s continued pursuit of at least three causes of action, which is sufficient to defeat the anti-SLAPP motion on this element.”
Issue of Malice
Addressing the matter of malice, he said:
“In the context of an attorney being sued for associating in a meritless litigation and failing to immediately dismiss it, malice is established when the absence of probable cause was combined with counsel’s awareness of facts proving the claims untenable or counsel’s failure to adequately familiarize himself with the case before associating in….
“Here, there is evidence that Attorney Barrett failed to conduct any investigation prior to agreeing to try the cross-complaint. Language in his appellate briefing seems to concede the point.”
The record, Rubin wrote, “establishes a prima facie case of malice.”
The case is Barrett v. Reeves, B295487.
Action Against Layfield
Reeves and MA3 sued all of the lawyers connected with the cross complaint. As to Layfield, he said in a footnote:
“Although the Layfield firm—which ultimately changed its name to Layfield & Barrett—was named as a defendant in the current malicious prosecution action, the liability of the firm itself (and any issues of Attorney Barrett’s liability for the acts of the firm) is not at issue in this appeal. The Layfield firm has disbanded and, according to Attorney Barrett, ‘is in Chapter 11 proceedings. Its former principal [Attorney Layfield] fled the country and has since been arrested and indicted.’ According to Reeves’s brief on appeal, Attorney Layfield has also been disbarred.”
Barrett was not implicated in Layfield’s alleged wrongdoing, which is alleged to include sealing settlement funds belonging to clients and wire fraud.
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