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Court of Appeal:
Telling Client to Violate Settlement Terms Is Protected
Wiley Says Post-Litigation Activity by Lawyer Is Protected Conduct Under Anti-SLAPP Statute
By a MetNews Staff Writer
Post-litigation advice to clients in connection with carrying out—or not carrying out—terms of a settlement agreement are part and parcel of petitioning activity that is protected conduct under the anti-SLAPP statute, Div. Eight of the Court of Appeal for this district has held.
That panel had two messages for members of the bar in an opinion, filed Friday, resolving a lawyer-versus-lawyer dispute: Hesitate before suing someone who was opposing counsel in previous litigation and, in defending on appeal the denial of an anti-SLAPP motion, don’t fail to address the second prong of Code of Civil Procedure §425.16—minimal merit—even if the trial judge did not discuss it.
Justice John Shepard Wiley Jr. of Div. Eight authored the opinion. It reverses an order by Los Angeles Superior Court Judge Cherol Nellon denying a special motion to strike filed by Bakersfield attorney Sandra Kuhn McCormack.
McCormack had been sued by lawyer Adriana Ramirez and others for an alleged financial loss stemming from her purported advice to clients to skirt provisions of an accord resolving litigation.
Nellon’s Ruling
Nellon found that the first prong of §425.16—that the action implicates the defendant’s “right of petition or free speech,” with petitioning including litigation—was not met.
The judge on Aug. 14, 2024, ruled that “the conduct at the heart of each of Plaintiffs’ claims is Defendants’ advice” to two clients “not to comply with the terms of the parties’ global settlement agreement,” declaring:
“The alleged conduct is not protected activity because the breach of the settlement agreement doesn’t arise from…petitioning activity or communications related to petitioning activity. Plaintiffs do not allege that Defendants committed any wrongdoing during the underlying actions or during settlement negotiations or execution.”
The judge said the alleged advice to breach the settlement agreement occurred, if at all, “after the underlying proceedings concluded,” precluding applicability of §425.16.
Wiley’s Opinion
Wiley, who has several times in his opinions provided guidance to members of the legal profession, kicked off the opinion by saying:
“If you are a party in litigation, your tactic of suing opposing counsel is apt to trigger swift retaliation: an anti-SLAPP motion. If opposing counsel are helping their clients petition for legal relief, your motion may fall within anti-SLAPP’s prong one as an attack on petitioning activity. If so, then prong two will require you to produce evidence your claims have minimal merit. If you cannot show minimal merit, you may have to pay your opponent for the trouble you have caused. This case fits this pattern.”
He continued:
“Adriana Ramirez was engaged in litigation with third parties. Ramirez sued opposing counsel: attorney Sandra McCormack and her law firm. Defendant McCormack responded with the predictable anti-SLAPP motion. In opposition, plaintiff Ramirez offered only an argumentative declaration by her attorney and no actual evidence. In this court Ramirez forfeits her opportunity to argue the merits, so McCormack’s motion wins the day. We reverse the trial court’s denial of McCormack’s anti-SLAPP motion and remand for a calculation of the fees and costs Ramirez must pay.”
First Prong
The justice said the case in point so far as McCormack’s alleged conduct being “protected” is Thayer v. Kabateck Brown Kellner LLP, decided in 2012 by Div. Two of the First District Court of Appeal. That case entailed an action against the law firm headed by prominent attorney Brian Kabateck based on a 2.5 percent reduction from settlement proceeds.
Justice James A. Richman’s opinion reverses the denial of an anti-SLAPP motion, saying:
“Numerous cases have held that the SLAPP statute protects lawyers sued for litigation-related speech and activity….Put otherwise, legal advice and settlement made in connection with litigation are within section 425.16, and may protect defendant attorneys from suits brought by third parties on any legal theory or cause of action “arising from” those protected activities.”
Wiley wrote:
“Thayer applies here. Ramirez sued McCormack for engaging in ‘litigation-related speech and activity.’…
“The anti-SLAPP statute covered McCormack’s actions. Ramirez had no relation to McCormack apart from McCormack’s status as attorney for Ramirez’s litigation opponent. McCormack was helping her clients petition the courts. Ramirez did not like that. Ramirez sued McCormack as opposing counsel. That attacked petitioning.”
Second Prong
Brentwood attorney Shiloh A. Parker represented Ramirez on appeal. She said in the respondent’s brief:
“Because the trial court did not reach the second prong, Appellants will not discuss the second prong. However, Appellants respectfully request leave to file supplemental briefing if this Court is inclined to move to the second prong.”
Wiley disapproved of that approach. He wrote:
“McCormack prevails on prong two because Ramirez has forfeited her opportunity to argue this appellate issue. She tells us she ‘will not discuss’ this point but requests leave to file supplemental briefing if we are ‘inclined to move to the second prong.’ McCormack offers no authority for piecemeal briefing, which is time-consuming and expensive. Standard practice is to the contrary.”
Under the second prong, the moving party is obliged to show a provability of prevailing on the merits.
The case is Ramirez v. McCormack, 2025 S.O.S. 2287.
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