Chodos v. Cole
210 Cal. App. 4th 692
| Cal. Ct. App. | 2012Background
- Chodos sued for unpaid fees; Borman’s former counsel sought indemnity against Cole, Johnson, and Dempsey for alleged malpractice in settlement of dissolution and Marvin action.
- Borman cross-claimed for malpractice, conversion, and related misconduct against Chodos and Gibson.
- Chodos cross-claimed for equitable indemnity against Cole, Johnson, Dempsey, and Dempsey & Johnson based on their independent review and advice of the settlement.
- Anti-SLAPP motions were brought by Cole and Dempsey to strike the equitable indemnity cross-complaint under § 425.16.
- Trial court granted the anti-SLAPP motions; appellate record showed no reporter’s transcript was used, and fees were awarded to Cole and Dempsey.
- Court held the cross-complaint does not arise from protected activity and reversed the strike orders; de novo review applicable; no reporter’s transcript required for the issue appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the equitable indemnity cross-complaint arise from protected activity under § 425.16(b)? | Chodos—indemnity claim rests on malpractice concerns arising from settlement. | Cole/Dempsey—claims stem from protected litigation activity (advise/review of settlement). | No; indemnity claim centers on malpractice, not petitioning/free-speech. |
| Are attorney malpractice claims within the anti-SLAPP scope when brought by a third party seeking indemnity? | Chodos—anti-SLAPP should apply; indemnity claims fall under protected activity. | Anti-SLAPP applies to third-party statements in settlement; indemnity claims involve protected conduct. | Not protected; garden-variety malpractice cases fall outside § 425.16). |
| Was an adequate record (reporter’s transcript) required for review of the anti-SLAPP rulings? | Record sufficient from briefs; no transcript necessary. | Transcript needed to review merits of the anti-SLAPP rulings. | No transcript required; de novo review based on papers; no need to augment record. |
| What is the proper standard of review for anti-SLAPP determinations on appeal? | Deferential review of trial court findings; rely on record. | De novo review appropriate for issues of law. | De novo review applies to the anti-SLAPP determination. |
| Are the attorney-fee and indemnity-related rulings independently appealable or severable? | Appeal of anti-SLAPP rulings and fee orders together. | Some fee-order aspects may be final or moot; not necessary to resolve here. | Court reverses the strike orders; does not address attorney-fee awards on merits. |
Key Cases Cited
- PrediWave Corp. v. Simpson Thacher & Bartlett LLP, 179 Cal.App.4th 1204 (Cal. App. 2009) (anti-SLAPP does not apply to client malpractice against former attorneys; distinction for third-party actions.)
- PREDI Wave Corp. (PrediWave), 179 Cal.App.4th 1204 (2009) (reiteration of third-party vs client malpractice distinctions under § 425.16.)
- Jespersen v. Zubiate-Beauchamp, 114 Cal.App.4th 624 (Cal. App. 2003) (garden-variety attorney malpractice not covered by anti-SLAPP.)
- Kolar v. Donahue, McIntosh & Hammerton, 145 Cal.App.4th 1532 (Cal. App. 2006) (malpractice claims against law firms typically not protected.)
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (framework for anti-SLAPP two-step analysis.)
- Thayer v. Kabateck Brown Kellner LLP, 207 Cal.App.4th 141 (Cal. App. 2012) (nonclient actions against attorneys may fall outside anti-SLAPP; malpractice context matters.)
- Robles v. Chalilpoyil, 181 Cal.App.4th 566 (Cal. App. 2010) (anti-SLAPP not applicable to claims against attorney for breach of fiduciary duty by nonclient.)
- Vo v. Las Virgenes Municipal Water Dist., 79 Cal.App.4th 440 (Cal. App. 2000) (attorney-fee proceedings and transcripts; record considerations.)