39 Cal.App.5th 656
Cal. Ct. App.2019Background
- Mancini & Associates represented Gina Rodriguez in an employment/tort action against NADT and its principal, Jason Schwetz, under a written retainer giving Mancini 50% of any recovery plus court-awarded fees and a lien for fees/costs.
- A 2008 jury verdict found Schwetz liable on breach of contract; the court entered judgment awarding Rodriguez damages, $136,050 in attorney fees, and costs; the judgment proved largely uncollectible.
- In 2015 Schwetz and Rodriguez renewed contact personally; after a collections attorney (Berke) began post-judgment collection efforts, Schwetz and Rodriguez executed a Memorandum of Settlement and Mutual Release that broadly released "all judgments, fees, costs" including attorneys’ fees, with Schwetz providing no consideration.
- Mancini was not a signatory to the Memorandum and did not consent to the release of its lien or fee rights; Schwetz faxed the Memorandum to the collections attorney and it was forwarded to Mancini.
- Mancini sued Schwetz (2016) for intentional interference with contract and economic relations and enforcement of its attorney lien; the trial court found Schwetz intentionally interfered and entered judgment awarding $409,351.81.
- Schwetz appealed, arguing (1) his settlement communications were protected by the litigation privilege (Civ. Code §47) and (2) insufficient evidence supported intent/knowledge of Mancini’s lien and interference.
Issues
| Issue | Plaintiff's Argument (Mancini) | Defendant's Argument (Schwetz) | Held |
|---|---|---|---|
| Whether the litigation privilege bars Mancini’s tort claims | Privilege does not protect noncommunicative tortious conduct that intentionally impairs an attorney’s lien; the Memorandum was part of a course of tortious conduct | The settlement/release and communications were part of settlement/collection efforts and thus privileged under Civ. Code §47 | Court: Privilege did not apply because Schwetz’s release was one act in a course of noncommunicative tortious conduct aimed at depriving Mancini of fees; not protected |
| Whether sufficient evidence shows Schwetz knew of Mancini’s fee lien and intended to interfere | Evidence of Schwetz’s trial attendance, knowledge of the judgment (including awarded fees), prior nuisance offers, $40 payment, and timing of the Memorandum after collection contact show knowledge and intent | Schwetz testified he lacked knowledge of Mancini’s retainer/fee lien and denied intent to interfere | Court: Sufficient evidence and reasonable inferences support that Schwetz knew of Mancini’s lien and intentionally interfered; judgment affirmed |
Key Cases Cited
- Silberg v. Anderson, 50 Cal.3d 205 (1990) (litigation privilege protects statements connected to judicial proceedings to allow freedom of access to courts)
- O'Keefe v. Kompa, 84 Cal.App.4th 130 (2000) (post-judgment collection efforts are an extension of the judicial process for privilege analysis)
- LiMandri v. Judkins, 52 Cal.App.4th 326 (1997) (litigation privilege applies only to communicative acts, not tortious courses of conduct)
- Little v. Amber Hotel Co., 202 Cal.App.4th 280 (2011) (third party who impairs an attorney's contractual lien may be liable for tortious interference)
- Sea & Sage Audubon Society, Inc. v. Planning Com., 34 Cal.3d 412 (1983) (issues not raised below generally cannot be raised for first time on appeal)