49 Cal.App.5th 458
Cal. Ct. App.2020Background
- Noe retained attorney J. Niley Dorit to evaluate medical records for a potential malpractice claim and paid a $10,000 non‑refundable retainer; the fee agreement included an arbitration clause referencing local bar fee arbitration.
- Noe was dissatisfied with Dorit’s evaluation and filed mandatory fee arbitration (MFAA) with the Bar Association of San Francisco seeking a refund.
- The arbitrator awarded Noe nothing and allocated the filing fee to Noe; neither party requested a trial de novo, so the award became binding by operation of law.
- Dorit then sued Noe for malicious prosecution based on Noe’s initiation of the MFAA arbitration; Noe moved to strike under the anti‑SLAPP statute (Code Civ. Proc., § 425.16).
- The trial court denied the anti‑SLAPP motion; Noe appealed.
- The Court of Appeal concluded MFAA arbitration is protected petitioning activity for anti‑SLAPP purposes but held an MFAA arbitration cannot serve as the predicate “prior action” for a malicious prosecution claim, and reversed the trial court.
Issues
| Issue | Plaintiff's Argument (Dorit) | Defendant's Argument (Noe) | Held |
|---|---|---|---|
| Whether MFAA fee arbitration is "protected petitioning activity" under the anti‑SLAPP statute | Dorit argued that if MFAA cannot support malicious prosecution, it should not qualify as protected activity | Noe argued MFAA arbitration is an "official proceeding authorized by law" (statutory, State Bar‑administered) and thus is protected | MFAA arbitration qualifies as protected petitioning activity (official proceeding) for anti‑SLAPP purposes |
| Whether a malicious prosecution claim can be predicated on an MFAA arbitration | Dorit contended the arbitration supported a malicious prosecution claim and that he made the required prima facie showing | Noe contended MFAA arbitration is unsuitable as the prior action: informal, confidential, limited remedies, and statutory rules bar using MFAA awards as collateral estoppel/evidence of innocence | Court held MFAA arbitration cannot be the predicate prior action for malicious prosecution; anti‑SLAPP motion should have been granted |
Key Cases Cited
- Philipson & Simon v. Gulsvig, 154 Cal.App.4th 347 (Cal. Ct. App. 2007) (initiation of State Bar‑sponsored fee arbitration is protected activity)
- Kibler v. Northern Inyo County Local Hosp. Dist., 39 Cal.4th 192 (Cal. 2006) (quasi‑judicial proceedings in comprehensive licensing schemes are "official proceedings")
- Liska v. The Arns Law Firm, 117 Cal.App.4th 275 (Cal. Ct. App. 2004) (MFAA limits scope of arbitration and bars use of awards as evidence in later proceedings)
- Schatz v. Allen Matkins Leck Gamble & Mallory LLP, 45 Cal.4th 557 (Cal. 2009) (purpose and statutory structure of the MFAA explained)
- Brennan v. Tremco, Inc., 25 Cal.4th 310 (Cal. 2001) (distinguishing private arbitration from judicial proceedings for malicious prosecution purposes)
- Stanley v. Superior Court, 130 Cal.App.3d 460 (Cal. Ct. App. 1982) (judicial arbitration can support malicious prosecution because it follows public litigation and accrues traditional harms)
- Kurz v. Syrus Systems, LLC, 221 Cal.App.4th 748 (Cal. Ct. App. 2013) (administrative decision barred by statute from being used as evidence cannot establish favorable termination for malicious prosecution)
- Bertero v. National General Corp., 13 Cal.3d 43 (Cal. 1974) (purposes and remedies of malicious prosecution tort explained)