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Court of Appeal:
Urging Parents to Fire Their Lawyer Is Protected Conduct
Order Denying Anti-SLAPP Motion Is Vacated
By a MetNews Staff Writer
A man who urged family members to fire their lawyer engaged in protected conduct for purposes of the anti-SLAPP statute, the Court of Appeal for this district held yesterday.
The unpublished opinion by Justice Martin J. Tangeman vacates Ventura Superior Court Judge Henry J. Walsh’s order denying a special motion to strike, pursuant to Code of Civil Procedure §425.16, the anti-SLAPP statute, filed by Dr. Calvin Lin, a pediatrician. He and his father, Dr. Victor Lin, practice together in an office in Oxnard.
That office is owned by Calvin Lin’s parents, Victor and Yvonne Lin.
Client Disenchantment
Represented by Tarzana attorney Ray B. Bowen Jr., the parents sued Cynthia Lau, the owner of the adjacent premises based on a leaking pipe there that caused $25,000 in damages to their premises. Over a three-year period, they paid Bowen $68,000, and, frustrated over the expense, Victor Lin ordered the lawyer to cease all but essential work while his daughter, Westlake Village attorney Gail C. Lin, tried to negotiate a settlement.
Bowen responded that he would not cease work and that so long as he was attorney of record, Gail Lin was not to authorized to meddle in the case. Victor and Yvonne Lin fired him, their daughter was substituted in, and she settled the case.
Seeking fees, Bowen sued Victor and Yvonne Lin. They cross-complained for malpractice and on other causes of action, and Calvin Lin joined as a cross-complainant.
Then Bowen brought a cross-complaint. He sued Calvin Lin, alleging he had intentionally interfered with prospective economic relations, had intentionally and negligently interfered with contractual relations, and had breached an oral contract by not cooperating in the litigation and then participating in firing him.
Judicial Proceedings
Tangeman wrote that Walsh erred in finding that Calvin Lin’s actions were not protected. He pointed out that under §425.16(e)(2), protection extends to “any written or oral statement or writing made in connection with an issue under consideration or review by a… judicial body,” and said, with respect to the interference causes of action:
“Bowen bases these causes on Calvin encouraging his parents to stop cooperating with Bowen in the Lau case, sever their attorney-client relationship with him, and instead have Gail negotiate a settlement. These communications were not tangential to the Lau case, but directly pertained to its resolution.”
Addressing the contract cause of action, Tangeman said whatever communications Calvin Lin had with Bowen came under §425.16(e)(2), as well as §425.16(e)(1) which renders protected “any written or oral statement or writing made before a… judicial proceeding,” explaining:
“[B]ut for the decision to file, fund, and prosecute the Lau case, Bowen’s breach of contract cause of action would have no basis.”
He noted that §425.16(e)(4) protects “conduct in furtherance of the exercise of the constitutional right of petition,” and declared:
“Decisions about hiring and firing one’s attorney—the second basis for Bowen’s breach of contract cause of action—are within this category.”
Fraud Allegation
Walsh also erred, Tangeman said, in finding that Bowen’s fraud allegation against Victor, Yvonne, and Calvin Lin was not predicated on protected conduct. The lawyer’s theory was that it was intended, all along, that on the eve of trial, he would be fired, Gail would be substituted in, and that unpaid bills for his services would not be honored.
The justice wrote:
“[T]he communications Victor, Yvonne, and Calvin had with Gail about settling the Lau case were ‘made in connection with an issue under consideration or review by a...judicial body’…and were therefore protected by the anti-SLAPP statute….And the parts of those communications the Lins allegedly concealed or withheld to induce Bowen to represent them were similarly protected as corollary to those communications.”
Walsh, in finding the complained-of conduct not to be protected, did not proceed to consider the second prong of the anti-SLAPP statute: whether the defendants had shown a probability of prevailing on the merits. The case was remanded for such a determination.
Gail Lin Sued
The opinion affirms the striking of interference and fraud causes of action against Gail Lin. Tangeman said Walsh correctly found that speech in connection with making arrangements with her to take over the representation was protected speech under Taheri Law Group v. Evans, decided in 2008 by Div. Eight of this district’s Court of Appeal.
In that case, then-Presiding Justice Candace Cooper wrote for the court in holding that the commercial-speech exception to the anti-SLAPP statute, contained in §425.17.
“The client’s right to receive legal advice relating to his representation, and to change lawyers if he chooses, would be thwarted if we were to construe the commercial speech exemption to apply to lawyers providing legal advice, even if that advice includes an element of commercial speech,” she wrote.
Tangeman said in yesterday’s decision that Walsh properly found that Gail Lin had shown a probability of prevailing on the merits, saying:
“The litigation privilege applies here. Bowen’s causes of action against Gail are all based on the advice she gave her parents and brother regarding the settlement of the Lau case.”
The case is Bowen v. Lin, B312831.
Nicholas T. Hua, Giacomo Gallai and Steven C. Gonzalez of the Glendale law firm of Hua Gallai & Gonzalez represented the Lin. Bowen was self-represented, and was joined by Tarzana attorney James Alfred Howard.
Tangeman has announced his retirement. Gov. Gavin Newsom late Friday announced his nomination of San Luis Obispo Superior Court Judge Hernaldo J. Baltodano as Tangeman’s replacement.
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