Attorney failed to represent client’s interests

California Courts of Appeal Reports

KOLAR v. DONAHUE, G036433 (Cal.App. 12-21-2006) JUDY KOLAR
et al., Plaintiffs and Respondents, v. DONAHUE, McINTOSH &
HAMMERTON, Defendant and Appellant. G036433 Court of
Appeal of California, Fourth District, Division Three
December 21, 2006 Certified For Partial Publication[fn*]

[fn*] Pursuant to California Rules of Court, rule 976.1,
this opinion is certified for publication with the
exception of part III, C.

[EDITORS’ NOTE: PURSUANT TO CALIFORNIA RULES OF COURT,
RULES 976(b) AND 976.1 THIS OPINION IS CERTIFIED FOR
PARTIAL PUBLICATION. THE SHADED TEXT BELOW REPRESENTS THE
ORIGINAL OPINION AND IS PROVIDED FOR REFERENCE PURPOSES
ONLY.]

Appeal from an order of the Superior Court of Orange
County, No. 05CC06967, David T. McEachen, Judge. Affirmed.

Law Offices of Timothy J. Donahue and Timothy J. Donahue
for Defendant and Appellant.

Shulman Hodges & Bastian, Ronald S. Hodges, Franklin J.
Contreras, Jr., and Evan W. Granowitz for Plaintiffs and
Respondents.

OPINION

ARONSON, J.

The law firm of Donahue, McIntosh & Hammerton (Donahue)
appeals the trial court’s denial of its special motion to
strike brought under the anti-SLAPP statute.[fn1] (Code
Civ. Proc., § 425.16; all further statutory
references are to this code unless otherwise noted.)
Donahue contends the legal malpractice action filed against
it arose from an act “in furtherance of [its] right of
petition or free speech under the United States or
California Constitution in connection with a public issue,”
and therefore protected under the anti-SLAPP statute. (
§ 425.16, subd. (b)(1).) He also contends the action
is barred by the litigation privilege, and thus subject to
a special motion to strike. We disagree with each of these
contentions.

As Donahue recognizes, this case presents a “garden variety
legal malpractice action.” A legal malpractice action
alleges the client’s attorney failed to competently
represent the client’s interests. Legal malpractice is not
an activity protected under the anti-SLAPP statute. That
the malpractice allegedly occurred in the course of
petitioning activity does not mean the claim arose from the
activity itself. Because Kolar’s malpractice action does
not arise from an activity protected under the anti-SLAPP
statute, Donahue failed to meet its initial burden. We also
conclude the litigation privilege does not bar legal
malpractice claims based on a litigator’s failure to
provide competent representation in a prior lawsuit. In the
unpublished portion of this opinion, we reject a number of
other contentions Donahue raises. Accordingly, we affirm
the trial court’s order.[fn2]

I

FACTUAL AND PROCEDURAL BACKGROUND

In March 2002, plaintiffs Judy and Jan Kolar, and the Kolar
Family Trust (Kolars) retained Donahue to provide legal
services in connection with a dispute arising from property
improvements constructed by plaintiffs’ neighbors.
Specifically, plaintiffs alleged the neighbors built a deck
and staircase without receiving plan approval from an
architectural committee as required by the subdivision’s
covenants, conditions, and restrictions (CC&R’s). Donahue
filed a complaint on behalf of the Kolars against
plaintiffs’ neighbors, and maintenance and management
companies employed by their homeowners association
(homeowner litigation). The Kolars lost the homeowner
litigation, and the court entered judgments against them
that included attorney fees totaling $957,824.

The Kolars filed the present malpractice suit, alleging
Donahue “failed to exercise reasonable care and skill”
while representing them in the homeowner litigation.
Donahue filed a special motion to strike under the
anti-SLAPP statute, which the trial court denied. Donahue
now appeals.

II

STANDARD OF REVIEW

An order denying an anti-SLAPP special motion to strike is
appealable under sections 425.16, subdivision (j), and
904.1. We review the trial court’s order de novo.
(ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993,
999.)

III

DISCUSSION

A. The Kolars’ Malpractice Action Does Not “Arise From”
Petitioning Activity Protected Under the Anti-SLAPP Statute

The anti-SLAPP statute provides: “A cause of action against
a person arising from any act of that person in furtherance
of the person’s right of petition or free speech under the
United States or California Constitution in connection with
a public issue shall be subject to a special motion to
strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff
will prevail on the claim.” ( § 425.16, subd.
(b)(1).)

“To prevail on an anti-SLAPP motion, the movant must first
make “`a threshold showing that the challenged cause of
action” arises from an act in furtherance of the right of
petition or free speech in connection with a public
issue.'” (Integrated Healthcare Holdings, Inc. v.
Fitzgibbons (2006) 140 Cal.App.4th 515, 522.) “Once the
movant meets this burden, the plaintiff must demonstrate
`”a probability of prevailing on the claim.'” [Citation.]
If the plaintiff cannot meet this burden, the trial court
must strike the cause of action.” (Ibid.)

Section 425.16, subdivision (e), clarifies: “As used in
this section, `act in furtherance of a person’s right of
petition or free speech under the United States or
California Constitution in connection with a public issue’
includes: (1) any written or oral statement or writing made
before a legislative, executive, or judicial proceeding, or
any other official proceeding authorized by law; (2) any
written or oral statement or writing made in connection
with an issue under consideration or review by a
legislative, executive, or judicial body, or any other
official proceeding authorized by law; (3) any written or
oral statement or writing made in a place open to the
public or a public forum in connection with an issue of
public interest; (4) or any other conduct in furtherance of
the exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a
public issue or an issue of public interest.”

Donahue contends the Kolars’ malpractice action arises from
Donahue’s petitioning activities in the homeowner
litigation and therefore is protected under section 425.16,
subdivision (e). We disagree.

“It is beyond dispute the filing of a complaint is an
exercise of the constitutional right of petition and falls
under section 425.16.” (A.F. Brown Electrical Contractor,
Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th
1118, 1125.) Thus, malicious prosecution actions are
subject to anti-SLAPP scrutiny because “[b]y definition, a
malicious prosecution suit alleges that the defendant
committed a tort by filing a lawsuit. [Citation.]” (Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735.) The
anti-SLAPP protection for petitioning activities applies
not only to the filing of lawsuits, but extends to conduct
that relates to such litigation, including statements made
in connection with or in preparation of litigation. (Kashian
v. Harriman (2002) 98 Cal.App.4th 892, 908.) Indeed, courts
have adopted “a fairly expansive view of what constitutes
litigation-related activities within the scope of section
425.16.” (Id. at p. 908.)

Although a party’s litigation-related activities constitute
“act[s] in furtherance of a person’s right of petition or
free speech,” it does not follow that any claims associated
with those activities are subject to the anti-SLAPP
statute. To qualify for anti-SLAPP protection, the moving
party must demonstrate the claim “arises from” those
activities. A claim “arises from” an act when the act
“`”forms the basis for the plaintiff’s cause of action”. .
. .'” (Equilon Enterprises v. Consumer Cause, Inc. (2002)
29 Cal.4th 53, 66.) “[T]he `arising from’ requirement is
not always easily met.” (Ibid.) A cause of action may be
“triggered by” or associated with a protected act, but it
does not necessarily mean the cause of action arises from
that act. (City of Cotati v. Cashman (2002) 29 Cal.4th 69,
77-78 (Cashman).) As our Supreme Court noted: “California
courts rightly have rejected the notion `that a lawsuit is
adequately shown to be one “arising from” an act in
furtherance of the rights of petition or free speech as
long as suit was brought after the defendant engaged in
such an act, whether or not the purported basis for the
suit is that act itself.’ [Citation.]” (Id. at p. 77.)

This point was illustrated in San Ramon Valley Fire
Protection Dist. v. Contra Costa County Employees’
Retirement Assn. (2004) 125 Cal.App.4th 343. There, a local
fire protection district filed suit against a county
retirement system and its board challenging defendants’
decision to increase the amount of employee retirement fund
contributions. In response, the defendants filed an
anti-SLAPP motion, which the trial court denied. Affirming,
the Court of Appeal determined that even if the defendants’
discussions and voting on the increase constituted
activities protected under the anti-SLAPP statute, the
plaintiffs’ cause of action arose from the board’s
collective action in increasing the contribution. The court
explained: “`The [anti-SLAPP] statute’s definitional focus
is . . . [whether] the defendant’s activity giving rise to
his or her asserted liability . . . constitutes protected
speech or petitioning. [Citation.]’ [Citation.] Thus, the
fact that a complaint alleges that a public entity’s action
was taken as a result of a majority vote of its constituent
members does not mean that the litigation challenging that
action arose from protected activity, where the measure
itself is not an exercise of free speech or petition. Acts
of governance mandated by law, without more, are not
exercises of free speech or petition. `[T]he defendant’s
act underlying the plaintiff’s cause of action must itself
have been an act in furtherance of the right of petition or
free speech. [Citation.]’ [Citation.]” (Id. at p. 354,
original italics.)

Similarly, in Benasra v. Mitchell Silberberg & Knupp LLP
(2004) 123 Cal.App.4th 1179, the court determined the
anti-SLAPP statute did not apply to a former client’s suit
against a law firm for breach of loyalty. There, the law
firm, who previously represented the plaintiff, represented
the plaintiff’s opponent in an arbitration proceeding.
Although pursuit of arbitration proceedings is a protected
activity, the court nonetheless held the breach of loyalty
claim did not arise from that activity, reasoning: “The
breach occurs not when the attorney steps into court to
represent the new client, but when he or she abandons the
old client. . . . In other words, once the attorney accepts
a representation in which confidences disclosed by a former
client may benefit the new client due to the relationship
between the new matter and the old, he or she has breached
a duty of loyalty. The breach of fiduciary duty lawsuit may
follow litigation pursued against the former client, but
does not arise from it. Evidence that confidential
information was actually used against the former client in
litigation would help support damages, but is not the basis
for the claim. . . . [T]heir claim is not based on `filing
a petition for arbitration on behalf of one client against
another, but rather, for failing to maintain loyalty to,
and the confidences of, a client.'” (Id. at p. 1189.)

In reaching its conclusion, Benasra relied in part on
Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624
(Jespersen), in which an attorney attempted to invoke the
anti-SLAPP statute against a former client’s malpractice
claim. Affirming the trial court’s denial of the anti-SLAPP
motion, Jespersen concluded defendants were attempting “to
turn garden-variety attorney malpractice into a
constitutional right.” (Id. at p. 632.) Jespersen, however,
did not purport to categorically exclude malpractice
actions from the anti-SLAPP statute. Instead, the court
concluded that the malpractice action in Jespersen fell
outside of the anti-SLAPP statute’s protection because it
arose in the context of the attorneys’ failure to timely
respond to discovery and to comply with court orders,
rather than direct petitioning activity. (Id. at p. 631.)
The court noted the “malpractice action [was] not based [on
the attorneys’] having filed an answer[,]
cross-complaint[,] . . . declarations, motions, or other
papers in that action, or upon [the attorneys’] appearance
on discovery or other motions.” (Id. at p. 630.)

We agree with Jespersen’s conclusion that “garden variety”
attorney malpractice is not a constitutional right, but we
cannot fully subscribe to the court’s application of the
principle articulated. Jespersen implies that an attorney
may invoke the protection of the anti-SLAPP statute against
a malpractice claim where the alleged malpractice was
committed in connection with petitioning activity, such as
the filing of a pleading, but not when the attorney fails to
act, such as failing to respond to discovery or court
orders. Under this logic, the anti-SLAPP statute would
apply to a malpractice claim alleging the attorney filed an
answer omitting a critical defense, but not where the
attorney failed to file an answer at all. In the former
case, however, the malpractice claim arises not from the
filing of the answer, but from the attorney’s failure to
provide competent legal representation. That the
malpractice claim was triggered by the filing of the
defective pleading does not upset the basic principle that
attorney malpractice is not a protected right. (See Cashman,
supra, 29 Cal.4th at p. 78.)

Our interpretation of the “arising from” requirement of
section 425.16, subdivision (b), is consistent with the
anti-SLAPP statute’s express purpose: “The Legislature
finds and declares that there has been a disturbing
increase in lawsuits brought primarily to chill the valid
exercise of the constitutional rights of freedom of speech
and petition for the redress of grievances. The Legislature
finds and declares that it is in the public interest to
encourage continued participation in matters of public
significance, and that this participation should not be
chilled through abuse of the judicial process. To this end,
this section shall be construed broadly.” ( §
425.16, subd. (a).)

A malpractice claim focusing on an attorney’s incompetent
handling of a previous lawsuit does not have the chilling
effect on advocacy found in malicious prosecution, libel,
and other claims typically covered by the anti-SLAPP
statute. In a malpractice suit, the client is not suing
because the attorney petitioned on his or her behalf, but
because the attorney did not competently represent the
client’s interests while doing so. Instead of chilling the
petitioning activity, the threat of malpractice encourages
the attorney to petition competently and zealously. This is
vastly different from a third party suing an attorney for
petitioning activity, which clearly could have a chilling
effect.

As Donahue conceded in its moving papers, this case
presents a “garden variety” malpractice action. Because
Kolars’ claims arise from Donahue’s alleged legal
malpractice and not from petitioning activity protected
under the anti-SLAPP statute, Donahue has failed to meet its
burden under the anti-SLAPP statute’s first prong.

B. Kolar’s Claims Are Not Barred by the Litigation
Privilege

Our Supreme Court has recognized that communications
“`within the protection of the litigation privilege of
Civil Code section 47, subdivision (b) [citation], . . .
are equally entitled to the benefits of section 425.16.’
[Citations.]” (Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1115; see also Ruiz v.
Harbor View Community Assn. (2005) 134 Cal.App.4th 1456,
1467, fn. 3 [“[clauses] (1) and (2) of section 425.16,
subdivision (e) . . . are co-extensive with the litigation
privilege”].) Donahue contends Kolar’s legal malpractice
action is barred by the litigation privilege, and thus also
within the protections of the anti-SLAPP statute. We
disagree.

The litigation privilege protects attorneys, judges,
jurors, witnesses, and other court personnel from tort
liability for any “publication or broadcast” made “[i]n any
. . . judicial proceeding. . . .” (Civ. Code, § 47,
subd. (b); Rosenfeld, Meyer & Susman v. Cohen (1983) 146
Cal.App.3d 200, 231, disapproved on other grounds in
Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994)
7 Cal.4th 503, 521, fn. 10.) Under the “`usual
formulation,'” the litigation “`privilege applies to any
communication (1) made in judicial or quasi-judicial
proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the
litigation; and (4) that have some connection or logical
relation to the action. [Citations.]’ [Citation.]” (Sylmar
Air Conditioning v. Pueblo Contracting Services, Inc.
(2004) 122 Cal.App.4th 1049, 1058.) The privilege extends
to “any publication . . . that is required [citation] or
permitted [citation] by law in the course of a judicial
proceeding to achieve the objects of the litigation, even
though the publication is made outside the courtroom and no
function of the court or its officers is invoked.”
(Albertson v. Raboff (1956) 46 Cal.2d 375, 380-381.)
Included under its protection are prelitigation demand
letters. (Aronson v. Kinsella (1997) 58 Cal.App.4th 254,
260-261.)

Although the scope of the litigation privilege is extremely
broad when applicable, the privilege does not apply in all
situations. In Mattco Forge, Inc. v. Arthur Young & Co.
(1992) 5 Cal.App.4th 392 (Mattco), the court considered
whether the litigation privilege protected an expert
witness who was sued for malpractice by his client based on
the expert’s testimony at trial. Despite recognizing the
privilege protects expert witnesses testifying at trial from
being sued by the opposing party, the court nonetheless
held that the litigation privilege did not apply. The court
observed that a key purpose of the litigation privilege was
to promote freedom of access to the courts and to encourage
witnesses to testify truthfully without the fear of
retaliatory lawsuits. The court reasoned that shielding an
expert from a malpractice suit by the expert’s own client,
however, would not further this purpose, and concluded the
privilege did not apply.

Of particular note is the court’s recognition of the
similarities between a hired expert and a party’s attorney:
“The analogy between a party bringing a suit against its
own expert witness and the party bringing a suit against
its own attorney has some relevance. . . . [T]he litigation
privilege shields `litigants, attorneys and witnesses from
liability for . . . virtually all torts except malicious
prosecution. [Citations.]’ Yet if it also protected an
attorney from any suit by a former client, no malpractice
suit could be brought.'” (Mattco, supra, 5 Cal.App.4th at
p. 407, italics added.)

Donahue cites no cases holding the litigation privilege
bars malpractice actions based on an attorney’s
litigation-related acts or omissions, and we have found
none. We perceive no sound reason why litigators should be
exempted from malpractice liability, and therefore decline
to extend the litigation privilege’s protection to the
present case.

C. The Malpractice Action Does Not Concern a Public Issue

Donahue contends the present case affects a public issue
falling under the anti-SLAPP statute because it concerns
the interpretation of CC&R’s. Donahue argues “that the
underlying lawsuit . . . was part of a whirlwind
controversy being addressed in the [L]egislature and in the
courts throughout California at that time.” This argument,
however, completely lacks any support in the record.
Although Donahue includes a newspaper clipping concerning
pending legislation targeting homeowner associations, the
clipping makes no mention of the underlying litigation or
the parties. In essence, Donahue argues any action
involving homeowner associations or the interpretation of
CC&R’s is ipso facto a matter of public interest because
the Legislature considered adopting laws concerning the
duties of homeowner associations to their owners. This is
akin to saying a simple auto accident case involves a matter
of public interest because Congress is considering
legislation dealing with auto safety. We cannot accept such
a proposition.

A statement or activity concerning a public issue typically
involves a person in the public eye, conduct that could
directly affect a large number of people beyond the direct
participants, or a topic of widespread public interest.
(Rivero v. American Federation of State, County and
Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913,
924.) A lawsuit concerning whether a deck and staircase were
approved and built in accordance with a subdivision’s CC&Rs
simply does not constitute a public issue under the
anti-SLAPP statute.

Finally, Donahue contends the trial court’s order denying
its anti-SLAPP motion is inconsistent with a later trial
court order granting the anti-SLAPP motion of other
attorneys filed in response to Donahue’s cross-complaint
against them. The latter order is not part of this appeal,
and Donahue failed to supply us with a record sufficient
for us to discuss the issue.[fn3]

In the introduction to its opening brief, Donahue states
that this appeal is also directed to the order awarding
attorney fees to the plaintiffs and the evidentiary rulings
of the trial court. Neither of these matters, however, are
argued further in its opening brief. Accordingly, we do not
address them.

IV

DISPOSITION

The order denying Donahue’s special motion to strike is
affirmed. The Kolars are awarded their costs of this
appeal.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.

[fn1] SLAPP is an acronym for strategic lawsuit against
public participation, first coined by two University of
Denver professors. (See Comment, Strategic Lawsuits Against
Public Participation: An Analysis of the Solutions
(1990/1991) 27 Cal. Western L.Rev. 399.)

[fn2] Donahue’s appeal is not frivolous. Accordingly, we
deny plaintiffs’ motion to dismiss. (See People ex rel.
Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1318 [the
power to dismiss a frivolous appeal “should not be used
except in the absolutely clearest cases”].)

[fn3] Donahue moved to augment the record to include items
pertaining to the trial court’s order granting the
cross-defendants’ anti-SLAPP motion. The proffered
materials do not include the challenged cross-complaint or
the trial court’s order granting the anti-SLAPP motion. We
deny Donahue’s motion to augment.