80 Cal.App.5th 155
Cal. Ct. App.2022Background
- Victor and Yvonne Lin (owners of a medical office) and their children retained attorney Ray B. Bowen Jr. to prosecute a lawsuit (the Lau case) arising from water damage to their office; Calvin was named as a plaintiff though he disagreed with suing.
- Over ~3 years the Lins paid Bowen nearly $68,000; Victor instructed Bowen to stop nonessential work while Gail (an attorney) sought settlement, but Bowen refused and remained counsel of record; Gail later substituted in and settled the case.
- Bowen sued Victor and Yvonne for unpaid fees; they (with Calvin) cross-complained alleging malpractice and fiduciary breaches. Bowen then filed a cross-complaint asserting breach of contract (Calvin), intentional/negligent interference (Calvin and Gail), fraud (Victor, Yvonne, Calvin), and conspiracy (all four Lins).
- Victor, Yvonne, and Calvin moved to strike Bowen’s cross-complaint under the anti-SLAPP statute; Gail separately moved to strike. The trial court granted Gail’s anti-SLAPP motion (concluding protected activity + litigation privilege defeated Bowen’s probability of prevailing) but denied the motions of Victor, Yvonne, and Calvin and declined to rule on evidentiary objections.
- On appeal, the Court of Appeal affirmed the grant as to Gail, reversed/vacated the denials as to Victor, Yvonne, and Calvin and remanded for the trial court to determine whether Bowen has shown a probability of prevailing; the court also held it need not rule on evidentiary objections now.
Issues
| Issue | Bowen's Argument | Lins' Argument | Held |
|---|---|---|---|
| Whether Bowen’s causes against Victor, Yvonne, and Calvin arise from protected activity under the anti-SLAPP statute | Bowen contends his claims (breach, interference, fraud, conspiracy) are ordinary tort/contract claims not protected because they attack conduct outside petitioning | Lins argue the asserted acts (communications about litigation, hiring/firing counsel, settlement decisions) are protected petitioning or communications in connection with judicial proceedings | Court: The causes arose from protected activity (communications/decisions tied to prosecution of the Lau case) |
| Whether Bowen demonstrated a probability of prevailing on claims vs. Victor, Yvonne, and Calvin | Bowen says his evidence shows merits and factual basis for breach, interference, fraud, conspiracy | Lins say the anti-SLAPP shifting burden applies and Bowen cannot show probability; trial court did not assess merits or evidence admissibility | Court: Trial court did not decide merits; remanded for trial court to determine probability of prevailing and rule on evidence |
| Whether Bowen’s causes against Gail arise from protected activity | Bowen argues Gail’s inducement/settlement conduct is not protected and she may have violated professional rules or engaged in actionable misconduct | Gail argues her communications and settlement activity about the pending case are protected petitioning activity | Court: Gail’s conduct was protected (Taheri and related authority) |
| Whether Bowen showed probability of prevailing against Gail (or is barred by litigation privilege) | Bowen asserts his evidence supports the claims against Gail | Gail contends the litigation privilege (Civ. Code §47(b)) bars liability for communications related to litigation, defeating Bowen’s probability showing | Court: Litigation privilege applies to Gail’s communications and bars Bowen’s claims; anti-SLAPP motion properly granted as to Gail |
Key Cases Cited
- Navellier v. Sletten, 29 Cal.4th 82 (establishes two-step anti-SLAPP framework)
- Flatley v. Mauro, 39 Cal.4th 299 (standard of independent review on anti-SLAPP rulings)
- Baral v. Schnitt, 1 Cal.5th 376 (plaintiff’s burden to show probability of prevailing at step two)
- Rusheen v. Cohen, 37 Cal.4th 1048 (filing, funding, and prosecution of a civil action are protected activity)
- Taheri Law Group v. Evans, 160 Cal.App.4th 482 (communications inducing clients to change counsel are protected)
- Loanvest I, LLC v. Utrecht, 235 Cal.App.4th 496 (distinguishes malpractice claims and when they are not SLAPPs)
- Rubin v. Green, 4 Cal.4th 1187 (expansive scope of the litigation privilege)
- Silberg v. Anderson, 50 Cal.3d 205 (elements and application of the litigation privilege)
- Kashian v. Harriman, 98 Cal.App.4th 892 (privilege is a question of law; doubts favor application)
- Pech v. Doniger, 75 Cal.App.5th 443 (advising clients to terminate an attorney is protected conduct)