Drell v. Cohen
181 Cal. Rptr. 3d 191
Cal. Ct. App.2014Background
- Slack retained Cohen (defendants) on a 40% contingency; Cohen withdrew and later filed an attorney lien with an insurer for fees incurred while representing Slack.
- Slack then retained Drell (plaintiff); Drell negotiated a settlement approved by the trial court and the insurer issued the check payable to Drell and Cohen, creating a dispute over entitlement to fees.
- Drell sued for declaratory relief to determine rights to the settlement proceeds and the validity/priority of Cohen’s lien.
- Cohen moved to strike under the anti‑SLAPP statute (§ 425.16), arguing the suit arose from their protected petitioning activity (a lien letter sent in anticipation of litigation).
- The trial court denied the anti‑SLAPP motion (finding the gravamen was not protected activity) and denied Drell’s fee request for opposing the motion; Cohen appealed. The Court of Appeal affirmed and denied Drell’s request for appellate fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Drell’s declaratory relief action "arises from" Cohen’s litigation‑related lien letter for anti‑SLAPP purposes | Drell: suit challenges validity/priority of the lien and seeks declaration of fee rights, not to punish protected petitioning | Cohen: the complaint flows from their lien letter (a demand made in anticipation of litigation) and therefore targets protected activity under § 425.16 | The complaint’s gravamen is a fee dispute over the lien, not a claim based on Cohen’s protected petitioning; anti‑SLAPP inapplicable, motion properly denied |
| Whether Drell is entitled to attorney fees for opposing the anti‑SLAPP motion and for this appeal | Drell: defendants’ motion and appeal were frivolous and intended to delay, so fees should be awarded under § 425.16(c) | Cohen: (implicit) motion and appeal were proper attempts to invoke anti‑SLAPP protections | Trial‑court fee denial affirmed as to fees below (Drell did not cross‑appeal); appellate court finds the appeal meritless but not frivolous/delayful enough to award fees on appeal; no fees awarded |
Key Cases Cited
- Taus v. Loftus, 40 Cal.4th 683 (2007) (describes anti‑SLAPP burden‑shifting framework)
- Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260 (2006) (de novo review of anti‑SLAPP rulings)
- Equilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53 (2002) (scope of protected petitioning activity under § 425.16)
- City of Cotati v. Cashman, 29 Cal.4th 69 (2002) (prima facie showing requirement for anti‑SLAPP motions)
- Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, 133 Cal.App.4th 658 (2005) (focus on the gravamen when claims involve protected and unprotected activity)
- Malin v. Singer, 217 Cal.App.4th 1283 (2013) (discusses when attorney demand letters may be protected as litigation‑related activity)