Travelers Casualty Insurance Co. of America v. Hirsh
2016 U.S. App. LEXIS 14127
| 9th Cir. | 2016Background
- Plaintiff Travelers sued attorney Robert Hirsh after Hirsh, who had represented Travelers’ insured (VDG) as Cumis counsel in a prior case, allegedly retained settlement funds and did not offset fees owed by Travelers.
- Hirsh filed a California anti‑SLAPP special motion to strike Travelers’ second amended complaint; the district court denied the motion.
- Hirsh appealed the denial; the Ninth Circuit considered whether it had jurisdiction to hear the interlocutory appeal and then addressed the merits of the anti‑SLAPP motion.
- Travelers pleaded causes of action for declaratory relief, unjust enrichment, breach of Cal. Civ. Code § 2860(d) (Cumis disclosure duties), and concealment based on post‑settlement conduct.
- The Ninth Circuit evaluated whether the challenged claims arose from protected petitioning/speech and whether Travelers showed a probability of prevailing.
- The court affirmed the denial of the anti‑SLAPP motion but declined to review denial of a separate claim (count two) because that denial was without prejudice and not final.
Issues
| Issue | Plaintiff's Argument (Travelers) | Defendant's Argument (Hirsh) | Held |
|---|---|---|---|
| Appealability / jurisdiction over denial of anti‑SLAPP motion | N/A (Travelers opposed appeal) | Denial of anti‑SLAPP is appealable as a substantive immunity matter under Ninth Circuit precedent | Ninth Circuit asserted jurisdiction and proceeded (affirmed under existing circuit law) |
| Does anti‑SLAPP protection apply to Hirsh’s conduct as Cumis counsel? | Travelers: claims target post‑settlement retention/concealment, not protected petitioning | Hirsh: his representation of VDG (Cumis work) is litigation‑related conduct protected by anti‑SLAPP | Court: Claims arise from post‑settlement retention/concealment, not from protected petitioning — anti‑SLAPP does not apply |
| Did Travelers show a probability of prevailing (legal sufficiency/triability) to defeat the special motion? | Travelers: alleged actual controversy, receipt/unjust retention of benefit, failure to disclose settlement amendment — supports claims | Hirsh: argued claims are barred by anti‑SLAPP and litigation privilege | Court: Travelers made a prima facie showing on declaratory relief, unjust enrichment, §2860(d) breach, and concealment — survives motion |
| Does California’s litigation privilege (Cal. Civ. Code § 47(b)) bar the suit? | Hirsh: underlying facts involved litigation communications, so privilege applies | Travelers: causes of action are grounded in non‑communicative, post‑settlement conduct | Court: Litigation privilege protects communications only; these claims are based on non‑communicative post‑settlement conduct and are not barred |
Key Cases Cited
- Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (held denial of California anti‑SLAPP motion immediately appealable in Ninth Circuit)
- DC Comics v. Pac. Pictures Corp., 706 F.3d 1009 (9th Cir. 2013) (reaffirmed appealability of anti‑SLAPP denials)
- Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009) (discusses final judgment rule and interlocutory appeals)
- Calderon v. Ashmus, 523 U.S. 740 (1998) (scope of declaratory judgment relief and actual controversy requirement)
- Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, 133 Cal.App.4th 658 (Cal. Ct. App. 2005) (anti‑SLAPP inapplicable where protected conduct is merely incidental to unprotected conduct)
- Rusheen v. Cohen, 37 Cal.4th 1048 (2006) (litigation privilege protects communications, not non‑communicative conduct)