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March 9, 2010

Seltzer v. Barnes (2010) 182 Cal.App.4th 953

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The First District holds that claims based on attorney speech connected to settlement negotiations are protected by the anti-SLAPP statute. 

Seltzer sued her homeowners association (HOA) and other parties.  The HOA cross-complained alleging trespass related to destruction of trees.  Seltzer’s carrier retained Barnes who successfully negotiated a settlement and dismissal of the trespass claims.

Seltzer sued her carrier, Barnes, the HOA, and other parties alleging that they had colluded to defraud her and defeat her right to coverage.  Seltzer alleged that there were secret negotiations between the HOA and the carrier to settle covered claims to justify terminating the carriers defense obligation on the cross-complaint.
Barnes moved to strike pursuant to California’s anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute.  The Court of Appeal held that Seltzer’s claims fell within the scope of the anti-SLAPP statute.  Settlement negotiations are considered protected activity.

The court rejected Seltzer’s argument that the settlement negotiations were not protected as “unlawful,” because Barnes submitted evidence that the ultimate settlement was preceded by a disclosure to Seltzer and an opportunity for her to express her preference regarding options to settle the cross-complaint.  Barnes’s evidence that he never misrepresented facts to Seltzer or concealed evidence from her was uncontested.  Thus Seltzer could not demonstrate that the settlement negotiations were conducted in an unlawful manner.

Seltzer failed to show a probability of prevailing at trial because Barnes’s conduct was protected under the litigation privilege codified in Civil Code §47(b).

Comment: This case promotes settlement by protecting attorneys from derivative claims relating to settlement negotiations.



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