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Court of Appeal:
Lawsuit Over Alleged Lies Told to Potential Client Is SLAPP
Opinion Says Complaint, Asserting That Former Colleague Spread Rumors That Lawyer Was Under Criminal Investigation, Was Properly Stricken Because Statements Related to Ongoing Litigation
By Kimber Cooley, associate editor
The Third District Court of Appeal yesterday held that a special motion to strike, filed under California’s anti-SLAPP law, was properly granted to an attorney who was sued by a former colleague for allegedly spreading rumors to a client and others that the plaintiff was under criminal investigation, finding that the statements were protected speech because they related to ongoing legal proceedings and are likely covered by the litigation privilege.
At issue is whether the statements qualified for protection under the anti-SLAPP statute found at Code of Civil Procedure §425.16(b), which provides:
“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 shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”
Subdivision (e)(2) defines covered acts to include “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.”
In an unpublished opinion authored by Acting Presiding Justice Harry E. Hull Jr., the court found that each claim asserted by the plaintiff fell under §425.16(e)(2)’s definition and concluded that the fired lawyer was unable to show a probability of prevailing due to California’s litigation privilege.
Lies Spread
The dispute arose after attorney Gurman Bal attempted to convince some of his former firm’s clients to allow him to assume representation over their cases after he was terminated in May 2022. According to the plaintiff, a principal of the firm, defendant Ashley Amerio, began spreading lies indicating that he was being criminally investigated.
Bal filed a complaint against Amerio, asserting causes of action for defamation, interference with contractual relations, and intentional infliction of emotional distress.
Placer Superior Court Judge Christine Dehr granted Amerio’s request to strike the complaint under §425.16. Yesterday’s opinion, joined in by Justices Ronald B. Robie and Shama Hakim Mesiwala, affirms the ensuing defense judgment.
Relates to Litigation
Hull cited case law establishing that a statement falls under §425.16(e)(2) if it relates to the substantive issues in the litigation and is directed to an interested party, and explained:
“Caselaw has extended the anti-SLAPP statute’s protections to communications by an attorney (communicating attorney) that causes the client of another attorney to switch their representation to the communicating attorney, and to the communications of an individual when he encouraged his parents to stop using the services of retained counsel.”
Applying those principles to the matter at hand, he opined:
“Amerio allegedly told [a client] that Bal was under criminal investigation during discussions that occurred while Bal was attempting to solicit [her] away from the firm….[T]he communications were discussions as to who was best qualified to represent [the client] in…litigation.”
Rejecting Bal’s assertion that Amerio’s purported statements do not relate to the substantive issues of any ongoing case, the jurist opined:
“Counsel plays a crucial role on behalf of their clients in addressing the substantive issues raised in litigation. The relationship between counsel and client can greatly impact the process of litigation, which, in turn, can impact how the substantive issues are ultimately resolved. Thus, discussions regarding who represents a party in a lawsuit and factors that contribute to the decision to retain counsel are communications, ‘made in connection with an issue under consideration or review by a…judicial body,’ and are protected….Amerio’s communications with [the client] were not ‘tangential’ to the resolution of [the] case, but ‘directly pertained’ to how she would proceed to resolve those issues: stay the course with Amerio or aim for a quick settlement with Bal.”
Probability of Prevailing
As to Bal’s probability of prevailing on the merits of his claims, Hull concluded that California’s litigation privilege, codified at Civil Code §47, operates as a likely bar to his causes of action. The section covers, subject to certain exceptions, statements made in any “(1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law.”
As to Amerio’s purported statements, he reasoned:
“Amerio’s alleged statements to [the client] were privileged in this context:…The[y] were made in a judicial proceeding,….by an authorized participant to the litigation….to achieve the object of the litigation, which would be the best possible award to [the client] once the case settled or went to trial.”
Saying that “[w]hen the Civil Code section 47…privilege applies, ‘[t]he privilege is absolute and precludes a claimant from establishing a probability of prevailing on the merits of his claim, ’ ” he declared that “Bal cannot show his causes of action” relating to Amerio’s statements to the client “have merit since they are barred by the Civil Code section 47.”
The case is Bal v. Amerio, C101173.
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