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Court of Appeal:
Failing to Warn of Anti-SLAPP Law Can Lead to Liability
Panel Reinstates Malpractice Action Brought by Disbarred English Solicitor
By a MetNews Staff Writer
A malpractice action may be predicated on the failure of lawyers to warn a client that bringing an action under California law stemming from protected conduct can result in an anti-SLAPP motion which, if granted, would result in having wasted money on litigating and being required to pay the defendants’ attorney fees, Div. Three of this district’s Court of Appeal held Friday.
In a published portion of the opinion, the appeals court reversed an order granting summary adjudication in favor of Edwards Wildman Palmer LLP (“EWP”) and attorney Dominique Shelton, then a partner in that firm, on a cause of action against them for professional negligence. The judgment was otherwise affirmed, in unpublished portions.
Suing for malpractice was disbarred English solicitor Shahrokh Mireskandari. The defendants represented him at the outset of his action in the U.S. District Court for the Central District of California against the Daily Mail, a London newspaper, and others.
Allegation of Complaint
Shelton (now known as Dominique Shelton Leipzig and a partner, as of this month, at Mayer Brown) signed the April 4, 2012 complaint. It alleges, among other things, that defendant National Student Clearinghouse (“NSC”), located in Virginia, houses law school records and, in violation of California’s privacy laws, conveyed information about Mireskandari’s records to the Daily Mail, which published that information in the course of its attacks on Mireskandari, then licensed as a solicitor.
Mireskandari was, at the time the pleading was filed, residing in California, as was defendant David Gardner, a Daily Mail reporter who allegedly lied to NSC that he had Mireskandari’s consent to look up his records. Venue was also based on the Daily Nail’s websites being available for viewing by Californians.
On April 16, 2012, the NSC informed Mireskandari that it did not possess his law school records. It was at that point that Shelton advised her client that he needed to either dismiss his action or file of an amended complaint and told him of California’s anti-SLAPP statute, Code of Civil Procedure §425.16.
Anti-SLAPP Motion Filed
Mireskandari opted to file an amended complaint. In June 2012, Associated Newspapers Limited, which owns the Daily Mail, brought an anti-SLAPP motion, and that same month, the Solicitors Regulation Authority for England and Wales struck Mireskandari’s name from the register of solicitors.
Shelton and her firm were fired by Mireskandari and a succession of other lawyers represented him. An anti-SLAPP was granted with leave to amend; a second amended complaint was filed; another anti-SLAPP motion followed; Mireskandari dismissed his federal action (and sued in Los Angeles Superior Court).
Mireskandari blamed Shelton and EWP, contending he would not have sued in the Central District of California, which applied California law in the diversity action, if he had been warned of the state’s statute.
Los Angeles Superior Court Judge Terry Green presided over Mireskandari’s action. Summarizing the plaintiff’s contentions, he said that “if Mireskandari had been told all these facts about anti-SLAPP, he would have taken a one-way ticket out of California...and never considered filing...here.” He recited that “because he wasn’t told about this anti-SLAPP, he is now stuck with...[n]ot only his own draconian attorneys’ fees, but the other side’s draconian fees too.”
Supreme Court Opinion
He granted summary adjudication in favor of the defendants based on a passage in the California Supreme Court’s 2003 decision in Viner v. Sweet (2003) 30 Cal.4th 1232. Then-Justice Joyce Kennard wrote:
“In a litigation malpractice action, the plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred. The purpose of this requirement, which has been in use for more than 120 years, is to safeguard against speculative and conjectural claims….It serves the essential purpose of ensuring that damages awarded for the attorney’s malpractice actually have been caused by the malpractice.”
That rule, the Court of Appeal had concluded, does not apply in transactional malpractice action; Kennard said, for a unanimous court, that it does.
Egerton’s Decision
Justice Anne H. Egerton authored yesterday’s opinion reversing the order granting summary adjudication. She wrote: “[T]he Viner court held, ‘just as in litigation malpractice actions, a plaintiff in a transactional malpractice action must show that but for the alleged malpractice, it is more likely than not that the plaintiff would have obtained a more favorable result’ (…second italics added.) Mireskandari’s professional negligence claim, premised on the allegations that he would have avoided significant litigation expenses and attorney fee sanctions, but for defendants’ negligent failure to advise him about the anti-SLAPP statute, satisfies that standard.”
She declared:
“Because an attorney owes a duty of care to advise a client of foreseeable risks of litigation before filing a lawsuit on the client’s behalf, we conclude Mireskandari asserted a viable claim that, but for defendants’ negligent failure to advise him of the risks associated with a potential anti-SLAPP motion, he would not have filed his lawsuit in California and would not have incurred damages from litigating and losing an anti-SLAPP motion.”
Virginia Action
Had he known of §425.16, Mireskandari contended, he would have filed his action in Virginia, which has no such statute. That, Shelton and EWP asserted, is a specious argument given that Mireskandari did, subsequently, file an action in state court there, and it was dismissed for lack of jurisdiction.
Egerton said in a footnote, in an unpublished portion of the opinion:
“Given the substantial attorney fees and sanctions he incurred litigating the Daily Mail’s anti-SLAPP motion, the fact that this Virginia lawsuit was dismissed does not conclusively prove Mireskandari would not have achieved a more favorable outcome by declining to file his lawsuit in California.”
The case is Mireskandari v. Edwards Wildman Palmer LLP, 2022 S.O.S. 1488.
Earlier Decision
On Aug. 31, 2016, Div. Three of this district’s Court of Appeal, in an portion unpublished opinion by Presiding Justice Lee Edmon declared that then-Los Angeles Superior Court Judge Gerald Rosenberg (now a private judge) should have granted the Associated Newspapers’ anti-SLAPP motion as to Mireskandari’s cause of action for false-light invasion of privacy. He had granted the motion as to the causes of action for common law intrusion and statutory information theft.
The Fourth District’s Div. One, in an unpublished opinion by Court of Appeal Justice Joan K. Irion, on July 27, 2020, reinstated Mireskandari’s action for invasion of privacy against the Century City law firm of Bird, Manella, Boxer, Wolpert, Nessim, Drooks & Lincenberg, PC, holding that he stated a cause of action against the firm for divulging confidential information about him to disciplinary authorities in the UK.
Irion also wrote a published Dec. 30, 2020 opinion affirming a judgment of dismissal of a Mireskandari’s suit against a medical doctor here, appointed by the UK disciplinary authorities to determine if the then-solicitor was, as he claimed, too ill to travel, necessitating that proceedings against him be stayed. The litigation privilege, Irion wrote, shields the defendant from liability for expressing his view that Mireskandari was fit to travel.
Mireskandari has been a party to other appeals.
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