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April 15, 2013

Castleman v. Sagaser (2013) 216 Cal.App.4th 481

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The Fifth District holds claims premised on an attorney’s breach of ethical duties do not involve protected activity under the anti-SLAPP statute. 

When Howard Sagaser resigned from his law firm, he accessed the files of clients Bratton and Castleman.  These clients engaged in real estate transactions with each other, pursuant to conflict waivers.  Sagaser communicated with attorney Russell Georgeson who subsequently filed a lawsuit against Castleman, Sagaser’s former law firm, and Timothy Jones, Sagaser’s former law partner, on behalf of Bratton.  Bratton claimed Castleman and Jones conspired to defraud him of his ownership interests in real property and sell it for less than its fair market value.  When Sagaster was deposed, he claimed attorney client privilege as to his communications with Georgeson and Bratton. 

Castleman filed a complaint against Sagaster for breach of fiduciary duty, breach of the duty of loyalty, conversion, and invasion of privacy.  Castleman alleged Sagaster used his confidential information to encourage and assist Bratton in suing him.

Sagaster filed a Special Motion to Strike under California’s Anti-Strategic Lawsuit Against Public Participation (Anti-SLAPP) statute.  Castleman countered his causes of action did not arise from Sagaser’s protected speech or petitioning activity, but his ethical violations and breaches of fiduciary duties. 

The Court of Appeal agreed with the trial court’s denial of Sagaser’s motion.  An Anti-SLAPP motion requires a two-step analysis that involves shifting burdens.   The moving defendant carries the initial burden to show the challenged cause of action arises from protected free speech or petitioning activity. If this is established, the burden shifts to the plaintiff to produce evidence establishing a probability of prevailing on the cause of action. 

The first prong focuses on the gravamen of the causes of action; the allegedly wrongful conduct that provides the foundation for the claims.  Although the statute encompasses a broad range of pre-litigation and litigation related activities, actions based on an attorney’s breach of professional or ethical duties to a client are not within the ambit of the anti-SLAPP statute, even in the context of litigation.  In these cases, the gravamen of the action is the attorney’s breach of professional duties; litigation is merely the setting. 

Castleman alleged Sagaster aligned himself with Castleman’s adversaries in direct conflict with his interests.    The gravamen pertained to ethical duties set forth in the Rules of Professional Conduct, not protected litigation activity.

The Court refused to consider the merits of Castleman’s allegations, as that is not an appropriate inquiry under the first prong.  Nor would the court consider Sagaster’s argument that the Castleman timed the lawsuit to achieve a strategic advantage. 

Comment: This case adds to a growing body of authority holding claims premised on an attorney’s duty to his or her client do not involve protected activity under the anti-SLAPP statute.

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