75 Cal.App.5th 443
Cal. Ct. App.2022Background
- Attorney Richard Pech entered a contingency fee agreement (15–45%) with clients to sue Dollar Shave Club; he drafted a complaint and was prepared to file in June 2019.
- The clients instructed Pech not to file and then terminated the agreement; Pech alleged the clients had negotiated with Dollar Shave and thereby deprived him of a vested contingency entitlement (claimed damages $200,000).
- Pech sued the clients and (later) their new attorneys, Stephen Doniger and Scott Burroughs, alleging interference with contract among other claims; he later dismissed other claims against the attorneys, leaving only interference with contract.
- Doniger and Burroughs filed an anti-SLAPP motion arguing their communications/advice to the clients about the proposed litigation and fee agreement were protected petitioning/speech and that the litigation privilege barred liability.
- The trial court granted the anti-SLAPP motion as to interference with contract; on appeal the court affirmed, holding the attorneys identified the protected conduct, the attorneys’ prelitigation legal advice was protected activity, and Pech could not show a probability of prevailing because the litigation privilege applied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did defendants meet their procedural burden to identify the allegations of protected activity? | Pech: motion should be denied because defendants failed to identify specific protected allegations to be stricken. | Doniger/Burroughs: they identified the acts (advising clients not to file/role in termination) underlying the interference claim. | Held: defendants met the burden as to the interference claim because the complaint alleged only the attorneys’ role in causing the clients not to file; court may strike an entire cause of action. |
| Is the attorneys’ advice to the clients protected activity under the anti‑SLAPP statute? | Pech: interference with a fee agreement is not protected; attorneys inducing termination of fee agreements can be liable. | Doniger/Burroughs: counseling clients about proposed litigation and fee rights is prelitigation speech in anticipation of litigation and falls within section 425.16 protections. | Held: the attorneys’ legal advice about proposed litigation and fee‑agreement rights was protected prelitigation petitioning/speech. |
| Did Pech establish a probability of prevailing on the interference claim? | Pech: his declaration and draft/metadata comparisons show the attorneys knew of the fee agreement and intended to disrupt performance; therefore minimal merit exists. | Doniger/Burroughs: even accepting Pech’s evidence, the communications are privileged under Civil Code § 47(b) and defeat liability as a matter of law. | Held: Pech failed the second prong; the litigation privilege bars the claim, and he did not make a prima facie showing of recoverable damages tied to defendants’ unprivileged conduct. |
| Does this panel’s prior decision (Pech I) bar finding defendants’ conduct protected? | Pech: this conduct is the same as in Pech I, where clients’ refusal to file was not protected. | Doniger/Burroughs: Pech I addressed the clients’ decision, not separate communications by the new attorneys; attorneys’ advice is distinct and protected. | Held: Pech I did not decide the question of attorney communications; this appeal concerns the attorneys’ statements, which are protected. |
Key Cases Cited
- Baral v. Schnitt, 1 Cal.5th 376 (clarifies anti‑SLAPP scope and requirement to identify protected allegations)
- Bonni v. St. Joseph Health System, 11 Cal.5th 995 (explains anti‑SLAPP two‑step framework)
- Monster Energy Co. v. Schechter, 7 Cal.5th 781 (anti‑SLAPP standard of review and procedure)
- Ixchel Pharma, LLC v. Biogen, Inc., 9 Cal.5th 1130 (elements and limits of tortious interference with at‑will contracts)
- Flatley v. Mauro, 39 Cal.4th 299 (prelitigation statements made in anticipation of litigation are protected)
- Briggs v. Eden Council for Hope and Opportunity, 19 Cal.4th 1106 (counseling/assisting others to sue can be protected prelitigation activity)
- Rusheen v. Cohen, 37 Cal.4th 1048 (litigation privilege extends beyond statements made at trial)
- Silberg v. Anderson, 50 Cal.3d 205 (litigation privilege is absolute and broad)
- Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal.4th 1232 (prelitigation statements privileged if litigation was in serious consideration)
- Wilson v. Cable News Network, Inc., 7 Cal.5th 871 (defendant must identify acts supplying claim elements at prong one)
- RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc., 56 Cal.App.5th 413 (discusses applicability of litigation‑privilege limitations to anti‑SLAPP)
- Taheri Law Group v. Evans, 160 Cal.App.4th 482 (communications about pending litigation to a client held protected)
- Drell v. Cohen, 232 Cal.App.4th 24 (distinguishes cases where protected conduct was merely incidental)