Fremont Reorganizing Corp. v. Faigin
198 Cal. App. 4th 1153
| Cal. Ct. App. | 2011Background
- Faigin sued Fremont Reorganizing Corporation (FRC) alleging joint employment with Fremont General Corporation as in-house counsel and wrongful termination; FRC cross-complained that Faigin, as former attorney, improperly informed the Insurance Commissioner about artworks allegedly owned by Fremont Indemnity, triggering a liquidation-adversary action against Fremont General and FRC; Faigin moved to strike the cross-complaint under anti-SLAPP; trial court struck all cross-complaint counts as arising from protected activity with litigation privilege; on appeal, court held some counts arise from protected activity but litigation privilege does not bar claims for breach of confidence and fiduciary duty; remanded to determine fees; prior liquidation order required cooperation with Commissioner for Fremont Indemnity’s assets; Faigin terminated March 12, 2008 and informed the Commissioner March 13, 2008; settlement in 2009 allocated proceeds and payments to Fremont Indemnity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the cross-claims arisefrom protected anti-SLAPP activity | Faigin’s statements to the Commissioner were shielded | Counts were based on illegal or improper conduct | Counts arise from protected activity; not barred by legality finding |
| Whether the litigation privilege bars the claims | Pretreatment communications protected; privilege should apply | Privilege does not blanket professional duties owed to former clients | Litigation privilege does not bar breach of confidence/fiduciary duties claims |
| Whether Faigin violated Rule 3-310(C) or equitable indemnity | Dual representation harmed former clients; statements violated rule | No contemporaneous conflict; allegations mischaracterize conduct | Rule 3-310(C) and equitable indemnity claims not proven; counts severed whereas others survive |
| Whether the trial court properly granted the anti-SLAPP motion | Faigin’s statements relate to public interest and proceedings | Anti-SLAPP should apply to all counts and strike | Some counts stricken, others allowed to proceed; partial reversal and remand for fee determinations |
Key Cases Cited
- Flatley v. Mauro, 39 Cal.4th 299 (Cal. 2006) (anti-SLAPP limits to criminally illegal conduct; not all statutory violations render speech unprotected)
- Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811 (Cal. 2011) (confidential information duties can establish prima facie breach in anti-SLAPP context)
- Kolar v. Donahue, McIntosh & Hammerton, 145 Cal.App.4th 1532 (Cal. App. 2006) (anti-SLAPP not applicable to some attorney malpractice claims arising from litigation)
- PrediWave Corp. v. Simpson Thacher & Bartlett LLP, 179 Cal.App.4th 1204 (Cal. App. 2009) (anti-SLAPP inapplicable where action arises from attorney’s acts other than petitioning)
- Neville v. Chudacoff, 160 Cal.App.4th 1255 (Cal. App. 2008) (connection to proceeding satisfies protected activity criterion)