Wednesday, August 26, 2020
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Court of Appeal:
Contemporaneous Representation of Parties Wasn’t ‘Protected’
Opinion Says Lewis Brisbois’s Conduct in Pursuing Litigation Despite Apparent Conflict of Interest Does Not Satisfy First Prong of the Anti-SLAPP Statute; Breach-of-Duty Suit Against It to Proceed
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has held that representation by the law firm of Lewis Brisbois Bisgaard & Smith of clients who, in litigation, accused members of another firm of wrongdoing—while Lewis Brisbois, at the same time represented that firm in unrelated litigation—was not “protected conduct.”
Accordingly, Justice Thomas M. Goethals said in an unpublished opinion filed Monday, an anti-SLAPP motion did not lie in a subsequent action for breach of fiduciary duty which the other firm, Bohm Wildish & Matsen, filed against Lewis Brisbois.
Attorneys Lance A. Selfridge and Joseph K. Hegedus of Lewis Brisbois in 2017 represented Fred Sacher in litigation relating to a family trust and directed allegations of misconduct at the Costa Mesa firm of Bohm Wildish, which was representing Kenneth Sacher and others. Despite Bohm Wildish also being a client, Lewis Brisbois would not recuse itself or, as an alternative, agree to desist from directing derisive comments at Bohm Widish.
On motion, it was disqualified. In June 2019, Bohm Wildish sued Lewis Brisbois.
Rejects Reasoning
Monday’s opinion affirms the denial by Orange Superior Court Judge James L. Crandall of Lewis Brisbois’s special motion to strike, pursuant to Code of Civil Procedure §425.16, but rejects the trial judge’s reasoning. Crandall found that the conduct of Lewis Brisbois in representing Kenneth Sacher and others was protected conduct—thus satisfying the first prong of §425.16—but that the defendant had not met its burden under the second prong: showing a probability of prevailing on the merits.
Goethals found it unnecessary to address the second prong.
He pointed out that the anti-SLAPP statute applies to “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue....”
Specific Statements
The jurist declared:
“Because Bohm Wildish’s cause of action arises out of Lewis Brisbois’s breach of its duty of loyalty owed to Bohm Wildish, rather than out of any specific statements or actions in court, the cause of action is not subject to a special motion to strike under the anti-SLAPP law.”
He explained:
“…Lewis Brisbois did not ‘promptly’ sever its relationship with Kenneth when it knew (or should have known) of the conflict between him and Bohm Wildish. Instead, it refused to leave the case insisting on its right to continue representing Kenneth as he attacked Bohm Wildish’s professional performance. It was that decision, rather than any specific statement made in court, which constituted a breach of its duty of loyalty to Bohm Wildish. Indeed, the breach would have been established even if Lewis Brisbois had confined its representation of Kenneth to behind-the-scenes advice, and had never officially appeared in court on his behalf.”
Goethals went on to say:
“[T]the cause of action arises out of the decision made by Lewis Brisbois to align itself with Kenneth, and against Bohm Wildish, to whom it owed a duty of loyalty. That alleged breach was not dependent on any statements made by Lewis Brisbois as it represented Kenneth. While those statements may have been what triggered Bohm Wildish’s lawsuit, that triggering effect does not demonstrate the cause of action arose from them.”
Counsel for Bohm Wildish were James G. Bohm and Gilbert A. Partida of that firm, along with Bohm Wildish & Matsen and James K. Ulwelling and Lauren E. Saint of Ulwelling Law in Costa Mesa. Lewis Brisbois was represented by Mark Schaeffer and Marshall R. Cole of the Encino firm of Nemecek & Cole.
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