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CA: "Anti-SLAPP" Statute No Defense in Legal Malpractice Actions

Masten v. MIller, King & James, LLP, California Court of Appeals, Fourth District, January 21, 2011

Facts: Plaintiff sued Defendant attorneys for malpractice in connection with an underlying medical malpractice matter.  Defendants, in turn, filed a crossclaim against Plaintiff for alleged negligence and intentional misrepresentation during the course of the underlying action which led to many months of work on a "meritless case, to their economic detriment."  Plaintiff filed an "anti-SLAPP [Strategic Lawsuit Against Public Participation]" motion under California statute 425.16 for summary judgment as to Defendants’ crossclaim.

The anti-Slapp staute authorizes a motion to strike 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 State or California Constitution.

The trial court denied Plaintiff’s motion, and he appealed.

Issues: Is the anti-SLAPP statute applicable in legal malpractice actions? 

Ruling: Generally, No. 

It is the moving party’s burden to establish that the act(s) complained of were taken in furtherance of the party’s "right of petition" or free speech "in connection with a public issue."  Here, Plaintiff alleged that the statute applied because Defendants’ crossclaim was based entirely on attorney-client communications made in the context of a judicial proceeding.  

The Court disagreed: 

Noting that other courts had refused to apply section 425.16 to a client’s claim against a former attorney for breach of fiduciary duty [] and for legal malpractice [], despite the fact the claims against those attorneys followed or was associated with petitioning activity on the clients’ behalf, we reasoned [i]t is `the principal thrust or gravamen of the plaintiff’s cause of action that determines whether the anti-SLAPP statute applies, and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.


Although respondents’ claims in their cross-complaint stem from their representation of appellant in a judicial proceeding and thus are related to litigation activities, we conclude the principal thrust or gravamen of the acts complained of in the cross-complaint derive from the parties’ private dealings with each other as attorney and client, devolve out of that contractual relationship and are based on the duties and responsibilities of the parties in carrying out that relationship.

Lesson: The protection afforded by California’s anti-SLAPP statute generally does not extend to claims arising out of the attorney-client relationship. 


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Posted in: California, Defenses