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December 18, 2003

Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624

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The Second District denies an attorney’s Special Motion to Strike a legal malpractice action under California’s Anti Strategic Lawsuit Against Public Participation (“anti-SLAPP”) statute.  “Garden variety” attorney malpractice is not conduct in furtherance of a right of petition or free speech. 

Karen Zubiate-Beauchamp and her co-counsel failed to timely respond to discovery in a lawsuit where they were defending Roger Leon Jespersen.  When the attorneys violated two court orders to respond to the discovery Jespersen’s answer and cross-complaint were stricken.  A default judgment was entered against Jespersen and a judgment of quiet title was entered in favor of Jespersen’s opponent.

In response to Jespersen’s complaint for legal malpractice, Zubiate-Beauchamp and her co-counsel filed a Special Motion to Strike under California’s Anti Strategic Lawsuit Against Public Participation (“anti-SLAPP”) statute C.C.P.  §425.16.  They alleged Jespersen’s complaint arose out of their exercise of a right to petition and free speech, that is, their filing of declarations in the underlying action in which they asked to be relieved of a mistake.  The trial court denied the motion.

The Court of Appeal observed that Special Motions to Strike are appropriate where a complaint arises from an exercise of a right to petition or free speech in connection with a judicial proceeding.  It also agreed that an attorney who is made a defendant in a lawsuit based on written or oral statements made on behalf of clients in a lawsuit could have standing to file a Special Motion to Strike.  However, the court refused to find that a legal malpractice action necessarily arises from such protected activity.  Courts must not look merely at the label of the lawsuit, but must examine whether the substance of the lawsuit is an act that furthers a right to petition or free speech.

The court flatly refused to find that “garden-variety” attorney malpractice involves constitutionally protected activity.  The attorneys were not being sued for any act in furtherance of a right of petition or free speech, but for their failure to act on behalf of Jespersen.  Although the attorney declarations in the underlying action were some evidence Jespersen relied on to support his claim, they were not the basis of the lawsuit.

Comment: Jespersen is the first case to address whether an action for legal malpractice between client and attorney may be challenged using a Special Motion to Strike.  Since Special Motions to Strike include the potential for attorneys’ fee awards to the prevailing party, its holding should slow any impulse to file such a motion in a typical legal malpractice case.

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