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Court of Appeal:
Order to Attorney Not to File Complaint He Drafted Is Not Protected Conduct
Granting of Anti-SLAPP Motion Based on Attorney’s Cause of Action for Contract Breach Is Reversed
By a MetNews Staff Writer
The Court of Appeal for this district has reversed an order granting an anti-SLAPP motion filed by defendants in an action brought by an attorney against ex-clients, holding that their order not to file a complaint the lawyer had drafted on their behalf—thus depriving him of the prospect of a contingency fee—was not protected conduct.
Bringing the action was Santa Monica attorney Richard Pech. Under the agreement with his then-clients, he was to receive 15 percent of a settlement, up to $200,000, if a settlement were reached within 60 days of the filing of a lawsuit.
The clients, Afshin Moghavem and others, opted to have a different lawyer file suit on their behalf. Pech contends they owe him $200,000.
His complaint contains various causes of action. It was only the one based on contract which Los Angeles Superior Court Judge Elaine Lu found to constitute a SLAPP, granting the defendants’ special motion to strike pursuant to Code of Civil Procedure §425.16.
Moor’s Opinion
Reversal came Thursday in an unpublished opinion by Justice Carl H. Moor of this district’s Div. Five. The first prong of the statute—protected speech or petitioning activity—was not satisfied, he declared, explaining:
“Pech alleged the defendants breached the fee agreement by preventing him from filing the complaint that he had drafted on their behalf. The anti-SLAPP statute protects a defendant’s exercise of the right of petition or speech, but here the defendants did not exercise their speech or petitioning rights in their dealings with Pech. In withholding the filing of a complaint, the defendants did not make a statement before a judicial body, in connection with an issue under review by a judicial body, or in a public forum. The instruction not to file the complaint was not conduct in furtherance of the exercise of their rights of petition or free speech.”
Moor continued: “The defendants may have been entitled to control their litigation activities by instructing Pech not to file a lawsuit, but their instruction to refrain from filing the complaint did not exercise their right to petition. Therefore, the conduct at issue was not the type protected by the anti-SLAPP statute.”
The case is Pech v. Moghavem, B308593.
Pech was in pro per. Stephen M. Doniger and Kelsey M. Schultz of the Venice firm of Doniger/Burroughs represented the defendants.
Attorney Fees Granted
Pech on June 23, 2020, joined Doniger and Scott Alan Burroughs as defendants by substituting them for Does. Wu granted their anti-SLAPP motion as to one cause of action naming them and Pech dismissed the other causes of action against them.
Last April 26, Wu granted the lawyers $26,185 in attorney fees and costs in the amount of $660.06 in connection with their anti-SLAPP motion.
On Oct. 16, 2020, Wu ordered that Pech’s complaint and his opposition to the anti-SLAPP motion be permanently sealed, with redacted versions being substitituted. She declined to impose sanctions on Pech, but warned:
“Plaintiff must cease and desist from publicly revealing attorney-client privileged communications in this action without first moving to seal and redact those attorney-client privileged communications. If Plaintiff continues to reveal attorney-client privileged communications through unredacted. public filings without first bringing a proper motion to file such documents under seal, the court will entertain a noticed motion for sanctions of up to $1,500 by any party affected pursuant to Code of Civil Procedure 177.5 for each violation (including potentially, for each attorney-client privileged communication improperly disclosed)….”
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