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October 25, 2012

Chodos v. Cole (2012) 210 Cal.App.4th 692

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The Second District holds a claim for equitable indemnity by one attorney against another premised on claims of legal malpractice is not subject to an anti-SLAPP motion .

Hillel Chodos and co-counsel Hugh Gibson sued Navabeh Borman for fees incurred in a marital dissolution and related “Marvin” action.  Chodos and Gibson alleged Borman accepted a settlement they procured, despite retaining three separate and independent lawyers to review their handling of her cases.  When Borman cross-complained for legal malpractice, Chodos filed a cross-complaint for equitable indemnity against the independent attorneys, Dana Cole, Stephen Johnson, Michael Dempsey, and Dempsey & Johnson.  Chodos alleged that they independently reviewed the proposed settlement; recommended Borman accept it; and that Borman did so on their advice.  The trial court granted Cole and Dempsey’s anti-SLAPP motions.

An anti-SLAPP (Strategic Lawsuit Against Public Participation) motion addresses lawsuits that seek to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances.  Code of Civil Procedure § 425.16 is a procedural remedy to dispose of such lawsuits at an early stage.  Courts engage in a two-step process.  First the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.  If so, the court determines whether the plaintiff has demonstrated a probability of prevailing on the claim.  If the complaint involves constitutionally protected activity, the plaintiff must show that the complaint is legally sufficient and must present a prima facie showing of admissible facts that, if believed by the trier of fact, would support a judgment in the plaintiff’s favor.  The court does not weigh the evidence, but determines whether the evidence is sufficient to support a judgment in the plaintiff’s favor as a matter of law, as on a motion for summary judgment.

Chodos asserted that he was entitled to indemnity because if Borman’s acceptance of the settlement was the result of attorney malpractice, the malpractice was not committed by him but by Cole and Dempsey.

The anti-SLAPP statute does not apply to “garden variety” claims of attorney malpractice, which do not depend on the exercise of a constitutional right.  While petitioning activity is part of the evidentiary landscape, the gravamen of the claim is the attorney engaged in non-petitioning activity inconsistent with obligations owed to the client.

The anti-SLAPP statute is applied to claims against attorneys by non-clients when they allege false statements made on behalf of clients or for abuse of process claims

For purposes of the anti-SLAPP statute, an attorney’s right to equitable indemnity in connection with a claim of attorney malpractice is not distinguishable from a client’s claim for malpractice.  Chodos’s claim concerns a breach of professional duty, not statements or filings made in connection with litigation.

The court rejected Cole and Dempsey’s argument that the litigation privilege codified at Civil Code § 47(b) precluded Cholos’s claims.  The litigation privilege is not coextensive with the first prong of the anti-SLAPP statute.  It can only be considered under the second prong, likelihood of success on the merits.  If the activity is unprotected under the first prong, the court cannot consider the applicability of the privilege under the second prong.

Comment: Attorneys are vulnerable to indemnity claims by co-counsel sued for malpractice by mutual clients.



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