Chodos v. Cole: Indemnification claim based on malpractice and a malpractice claim are similar for determination of the anti-SLAPP statute’s applicability.
By Garrett C. Dailey, Family Lawyer
FACTS: Lawyers (Ps) sued a former client (D) for fees owing for their representation in divorce proceedings and a related “Marvin” action. D became mistrustful of Ps and engaged three independent lawyers to review their handling of her cases and to give her independent advice. Ps procured a settlement for D that she accepted. Ps claimed D’s verbal agreement to pay their hourly rate was modified to provide for a contingency fee. Ps alleged D never paid, and refused to pay, atty. fees or costs. They did receive $215,000 from D’s husband per court order and credited that amount against fees and costs owed. Ps sought unpaid atty. fees of $3,500,000.
D, represented by Dempsey law firm, cross-complained against Ps for atty. malpractice, claiming Ps failed to prepare, misrepresented the terms of the proposed settlement prior to the execution, failed to enforce interim court orders, and failed to advise her on various issues.
P1 filed a cross-complaint against attys., including Cole and Dempsey firm (collectively referred to as “Dempsey”), for equitable indemnity, alleging they acted as D’s concurrent, independent advisers and independent counsel while Ps represented her of record. P1 further alleged that Dempsey independently reviewed the proposed settlement; recommended to D that she accept it; and that she did so, not in reliance on the advice of Ps, whom she did not trust, but in reliance on the advice of Dempsey. Thus, P1 sought equitable indemnification for any amounts found due D on account of his alleged malpractice.
Dempsey filed Code of Civil Procedure section 425.16 motion to strike on the ground the cross-complaint “arose from” protected activity. Trial ct. granted anti-SLAPP motions. Trial ct. awarded Dempsey $59,435 in atty. fees and costs.
P1 appealed. Court of Appeal reversed the orders striking the cross-complaint.
HELD: Orders striking P’s cross-complaint against attys. for equitable indemnity reversed where claim was essentially for atty. malpractice and thus did not involve activity protected by anti-SLAPP statute.
Anti-SLAPP statute does not apply to claims of attorney malpractice.
Here, P1 claimed indemnity for an attorney malpractice claim based on the representation of D by Dempsey. Specifically, P1 claimed that if the settlement he negotiated was the result of attorney malpractice, the malpractice was not committed by him or P2, but by one or both of the cross-Ds who “independently reviewed and approved” the settlement and “concurred in the propriety of said settlement and its benefit to defendant [client], and advised her to accept it, and on whose advice she relied in deciding to accept it.”
“For purposes of the anti-SLAPP statute, a claim by an attorney against other attorneys for equitable indemnity in connection with a claim of attorney malpractice is not distinguishable from a client’s claim against an attorney for malpractice. The claim for indemnity is still grounded in allegations of attorney malpractice. Indemnity and malpractice may be different causes of action, but that does not mean that the claim for indemnification based on malpractice should be treated differently than a malpractice claim for purposes of whether the anti-SLAPP statute is applicable.” (Chodos v. Cole, supra, 210 Cal.App.4th at pp. 703-704.)
NOTES: (1) Court also held P1 did not have to supply a reporter’s transcript of the argument before the trial ct. because matter reviewed de novo, and the trial ct. said it relied only on the papers submitted; none of the parties relied on anything that occurred during that argument. Under California Rules of Court, rule 8.130(a)(4), an appellant may “elect to proceed without a reporter’s transcript.” Existing Supreme Court authority does not require a transcript of the hearing in connection with whether the anti-SLAPP statute applies to a specific pleading. The cases cited by cross-Ds did not challenge this rule.
(2) Dissenting opinion by Turner, P.J., arguing the gravamen of the equitable indemnity cross-complaint were written and oral statements made in the course of litigation, which are protected by Code of Civil Procedure section 425.16(e)(2).
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Garrett C. Dailey is a Certified Family Law Specialist focusing on appellate issues and consultations, a Fellow in American Academy of Matrimonial Lawyers and publisher/co-author of ATTORNEY’S BRIEFCASE® CALIFORNIA FAMILY LAW, California’s oldest provider of self-contained legal research software. BriefCase is available online and through the Attorney’s BriefCase iPad® app. For more information visit them at www.atybriefcase.com. Also check out their FREE legal education log at www.MyLegalEducationLog.com.
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