34-2013-00147273

Mark Downie vs. Frank Radoslovich

Nature of Proceeding: Motion to Strike (SLAPP)

Filed By: Parker, Port J.

Defendants Frank Radoslovich, et al’s Special Motion to Strike (anti-SLAPP) is ruled
upon as follows.

This action arises out of Defendants’ previous legal representation of Plaintiff Mark
Downie in litigation involving Plaintiff’s ownership of a large emerald. Plaintiff alleges
that Defendants failed to adequately represent his interests in the underlying lawsuit in
various aspects, including failing to provide Plaintiff with an estimate of the cost of the
representation, failing to act in accordance with Plaintiff’s wishes in the course of
settlement negotiations, and inflating legal bills. Plaintiff asserts five causes of action:
Breach of Contract, Fraud (Intentional Misrepresentation), Fraud (Concealment),
Rescission, and Restitition.

Defendants now move to strike that complaint and all causes alleged against them on the ground that Plaintiff’s claims against them “arise from” conduct protected by one or
more of the provisions of CCP §425.16.

“The analysis of an anti-SLAPP motion thus involves two steps. First, the court decides
whether the defendant has made a threshold showing that the challenged cause of
action is one “arising from” protected activity. If the court finds such a showing has
been made, it then must consider whether the plaintiff has demonstrated a probability
of prevailing on the claim. Only a cause of action that satisfies both prongs of the anti-
SLAPP statute – i.e., that arises from protected speech or petitioning and lacks even
minimal merit-is a SLAPP, subject to being stricken under the statute.” (Oasis West
Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820; citations omitted.)

Under CCP §425.16(e), protected activity, or an “‘act in furtherance of a person’s right
of petition or free speech under the United States or California Constitution in
connection with a public issue’ includes: (1) any written or oral statement or writing
made before a legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law, (2) 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, (3) any written or oral
statement or writing made in a place open to the public or a public forum in connection
with an issue of public interest, or (4) any other conduct in furtherance of the exercise
of the constitutional right of petition or the constitutional right of free speech in
connection with a public issue or an issue of public interest.”

Defendants contend that because the alleged wrongful conduct occurred in the course
of litigation, a judicial proceeding, it is “protected activity” for purposes of the anti-
SLAPP statute. However “the anti-SLAPP statute does not apply to a client’s claim
against his or her former attorney for breach of fiduciary duty…or for malpractice
merely because the client’s claim against the former attorney followed or was
associated with petitioning activity by the attorney on the client’s behalf.” (Hylton v.
Frank E. Rogozienksi, Inc. (2009) 177 Cal.App.4th 1264, 1273.)

Regarding application of the anti-SLAPP statute to claims against attorneys, the
Supreme Court has concluded:

“In determining the applicability of the anti-SLAPP statute, we think a distinction
must be drawn between (1) clients’ causes of action against attorneys based
upon the attorneys’ acts on behalf of those clients, (2) clients’ causes of action
against attorneys based upon statements or conduct solely on behalf of
different clients, and (3) nonclients’ causes of action against attorneys. In the
first class, the alleged speech and petitioning activity was carried out by
attorneys on behalf of the plaintiffs in the lawsuits now being attacked as
SLAPP’s, although the attorneys may have allegedly acted incompetently or in
violation of the Professional Rules of Conduct. The causes of action in this
first class categorically are not being brought ‘primarily to chill the valid
exercise of the constitutional rights of freedom of speech and petition ….’ (
§ 425.16, subd. (a).)

We recognize that the statute makes ‘[a] cause of action against a person
arising from any act of that person in furtherance of the person’s [constitutional]
right of petition or free speech … in connection with a public issue … subject to
a special motion to strike’ (§ 425.16, subd. (b)(1), italics added). Although this
statutory language has been interpreted broadly to protect qualifying statements
made or conduct undertaken by a person on another person’s behalf against a
cause of action by a third person [citations], it is unreasonable to interpret
this language to include a client’s causes of action against the client’s
own attorney arising from litigation-related activities undertaken for that
client.

(PrediWave Corporation v. Simpson Thatcher & Bartlett, LLP (2009) 197 Cal.App.4th
1204, 1227-1228, emphasis added.)

Here, the gravamen of Plaintiff’s claims is Defendants’ alleged failure to fulfill the
contractual and other duties which Plaintiff hired them to perform. The fact that some
of the alleged conduct occurred in the context of litigation does not require the
conclusion that the lawsuit arises from protected activity. (See Hylton, supra, 177
Cal.App.4th at 1273. (“Although a party’s litigation-related activities constitute ‘act[s] in
furtherance of a person’s right of petition or free speech,’ it does not follow that any
claims associated with those activities are subject to the anti-SLAPP
statute.” (Citations omitted).)

Accordingly, the Court cannot conclude that Defendants have met their burden under
the first prong of the anti-SLAPP analysis, as they have not established that Plaintiff’s
claims arise out of protected activity.

Having so determined, the Court need not consider the second prong, whether Plaintiff
is likely to prevail on the merits of his claims.

The special motion to strike (anti-SLAPP) is denied.

To the extent the prevailing party wishes to seek attorney’s fees in connection with this
motion, he may do so by separate motion.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.