Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV107941.
RUSHING, P.J.
Francis Doyle and Anthony Caselli appeal an order denying their special motion to strike a complaint under Code of Civil Procedure section 425.16 (section 425.16), the anti-SLAPP statute. Doyle and Caselli contend they met their burden to show that the legal malpractice lawsuit brought against them by Bonnie Burdett and Joyce Anthony, successor trustees of the KMP Trust, arose from petitioning activity on behalf of their client, former KMP Trustee, James Valentine. We conclude that Burdett and Anthony’s action was not subject to dismissal as a SLAPP suit, and therefore, affirm the order.
Statement of the Facts and Case
The instant case concerns the KMP Irrevocable Trust, established by Kelsey Phipps, to provide for the “health, maintenance, education, travel, and welfare, and general welfare, ” of her two minor sons at the time of her death. Phipps died in a plane crash on October 2, 2000. In May 2001, the trust was funded with $20,524,234 from the proceeds of Phipps’s life insurance policy.
Upon Phipps’s death in 2000, James Valentine, a personal friend of Phipps, became the appointed trustee of the trust until he was suspended by the probate court in March 2007 for mismanagement of trust assets. After suspending Valentine, the court appointed interim trustees, respondents Bonnie Burdett and Joyce Anthony.
During the period that Valentine served as trustee of the KMP Trust, he was represented by Francis Doyle, and Anthony Caselli, who advised Valentine on issues related to the administration of the trust.
In March 2008, Burdett and Anthony, as successor trustees of the KMP Trust, filed an action against attorneys Doyle and Caselli, alleging causes of action for legal malpractice and breach of fiduciary duty in connection with their representation of Valentine in his capacity as the former trustee of the KMP Trust.
The allegations in the complaint were based on Doyle and Caselli’s failure to advise Valentine as trustee on the proper administration of the trust.
In response to the complaint, Doyle and Caselli filed a special motion to strike the complaint under section 425.16. The trial court denied their motion, ruling that “the causes of action do no arise from protected conduct; rather, they arise from [Doyle and Caselli’s] inadequate representation of their client.”
Discussion
“ ‘Review of an order granting or denying a motion to strike under section 425.16 is de novo.’ ” (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (§ 425.16, subd. (b).)” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.)
Section 425.16, subdivision (b)(1) provides: “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 States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”
Thus, the statute “ ‘posits... a two-step process for determining whether an action is a SLAPP. 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 the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.’ [Citation.] ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute.’ ” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278-279.) On the first step, the party filing the anti-SLAPP motion has the burden of establishing that the plaintiff's claim arose from protected activity. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) “[T]he statutory phrase ‘cause of action... arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.)
On the second step, the party defending against the motion has the burden to establish a probability of prevailing on the claim. (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78 .) A “court need not reach this second prong of the analysis if the ‘arising from protected activity’ requirement is not met.” (Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 801.)
Here, the trial court ended its inquiry at the first step of the analysis, deciding that Doyle and Caselli had not met their burden to establish that the malpractice and breach of fiduciary duty causes of action asserted by Burdett and Anthony arose from protected activity. We thus proceed to examine the same question addressed by the trial court, namely whether Burdett and Anthony have asserted claims against Doyle and Caselli that arise out of protected activity.
The type of activity protected by the anti-SLAPP statute is set forth in “[s]ubdivision (e) of section 425.16, [which] defines the phrase ‘ “act in furtherance of a person’s right of petition or free speech... in connection with a public issue” ’ to include: ‘(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.’... A defendant who invokes either subparagraph (1) or subparagraph (2) of subdivision (e) of section 425.16... need not ‘separately demonstrate that the statement concerned an issue of public significance.’ ” (Kibler v. Northern Inyo County Local Hosp. Dist. (2006) 39 Cal.4th 192, 198, italics omitted.)
To address these arguments we first focus on the meaning of “a cause of action... arising from” protected activity as used in section 425.16, subdivision (b)(1). “[T]he statutory phrase ‘cause of action... arising from’ means simply that the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right to free speech. [Citations.] In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.] ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)....’ ” (City of Cotati, supra, 29 Cal.4th at p. 78.) “That a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such” (ibid.), and “the mere fact an action was filed after protected activity took place does not mean it arose from that activity.” (Id. at pp. 76-77.)
The question here is whether the principal thrust or gravamen of the allegations in the complaint is protected or unprotected activity. The complaint contains four causes of action: two for legal malpractice, and two for breach of fiduciary duty. With respect to the legal malpractice claims, Burdett and Anthony allege Doyle and Caselli failed to properly advise Valentine “solely in his capacity as Trustee, ” on how to administer the KMP Trust properly.
The breach of fiduciary duty claims in the complaint relate to allegations that Doyle and Caselli, in their representation of Valentine in his fiduciary capacity, wrongfully advised him that he had not breached his duties as trustee of the KMP Trust, and encouraged Valentine’s continued obstructionism.
While Valentine’s conduct as trustee ultimately resulted in litigation in the trust matter, the causes of action alleged here related to Doyle and Caselli’s representation of Valentine are not necessarily based on protected litigation-related activity. Whether or not the complaint falls within the confines of the anti-SLAPP depends on whether the references to protected litigation-related activity are merely incidental to a cause of action based essentially on unprotected activity. (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.)
Several courts have addressed litigation-related activities when applying the anti-SLAPP statute. In Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, the plaintiffs sued their former attorneys for malpractice, alleging, among other things, that the attorneys’ negligence resulted in an order striking the plaintiffs’ answer and cross-complaint in a civil action in which they had been named as defendants. (Id. at p. 628.) The defendant attorneys moved to strike pursuant to section 425.16, claiming the plaintiffs’ causes of action arose from protected activities, including filing pleadings and other papers and appearing on plaintiffs’ behalf in court. (Id. at pp. 628, 630.) The trial court denied the motion and the appellate court affirmed, concluding that the malpractice claim did not arise out of the attorneys’ exercise of petitioning rights, but rather out of their negligent representation of the plaintiffs, including their failure to comply with a discovery statute and two court orders. (Id. at pp. 630-632.) The alleged petitioning activities, including filing pleadings and declarations in court, were merely evidence of malpractice, not the basis of the malpractice claim. (Id. at p. 632.)
In another relevant case, Freeman v. Schack (2007) 154 Cal.App.4th 719, the Court of Appeal considered a lawsuit by plaintiffs against their former attorney for breach of contract, professional negligence and breach of fiduciary duty. These causes of action were “based on allegations that [the defendant attorney] had entered into a contract by which he assumed attorney-client duties toward plaintiffs but abandoned them in order to represent adverse interests in the same and different litigation.” (Id. at p. 722.) The defendant attorney moved to strike the complaint under section 425.16, arguing the causes of action were based on acts in furtherance of his constitutional right of petition, including filing a lawsuit and making written or oral statements in court. (Id. at pp. 725-726.) The trial court denied his motion. (Ibid.) The appellate court affirmed, concluding that the principal thrust of the conduct underlying the plaintiffs’ causes of action was not protected petitioning activity: “[P]laintiffs’ allegations concerning [defendant’s] filing and settlement of the Hemphill litigation are incidental to the allegations of breach of contract, negligence in failing to properly represent their interests, and breach of fiduciary duty arising from his representation of clients with adverse interests.” (Id. at p. 732.)
Further, in Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1535, the plaintiff brought a “ ‘garden variety legal malpractice action.’ ” The trial court denied the defendant law firm’s subsequent anti-SLAPP motion and the appellate court affirmed, holding: “A legal malpractice action alleges the client’s attorney failed to competently represent the client’s interests. Legal malpractice is not an activity protected under the anti-SLAPP statute. That the malpractice allegedly occurred in the course of petitioning activity does not mean the claim arose from the activity itself. Because the [plaintiffs’] malpractice action does not arise from an activity protected under the anti-SLAPP statute, [the defendant law firm] failed to meet its initial burden.” (Id. at p. 1535.)
Finally, in the recent case of PrediWave Corp. v. Simpson Thatcher & Bartlett LLP et al. (2009) 179 Cal.App.4th 1204, we reversed the trial court’s grant of an anti-SLAPP motion in an attorney malpractice action. In reversing the trial court, we reasoned that the anti-SLAPP statute is not applicable to “clients’ causes of action against attorneys based upon the attorneys’ acts on behalf of those clients, ” because those causes of action are not “being brought ‘primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition....’ (§ 425.16, subd. (a).)” (Id. at p. 1227.) We reasoned that “clients do not bring such lawsuits to deter the speech and petitioning activities done by their own attorneys on their behalf but rather to complain about the quality of their former attorneys’ performance.” (Id. at p. 1227).
The litigation related cases discussed above establish that a cause of action does not become subject to the anti-SLAPP statute merely because the defendant was engaged in litigation-related activities at the time the claim arose. For example, as Kolar explains: “Although a party’s litigation-related activities constitute ‘act[s] in furtherance of a person’s right of petition or free speech, ’ it does not follow that any claims associated with those activities are subject to the anti-SLAPP statute. To qualify for anti-SLAPP protection, the moving party must demonstrate the claim ‘arises from’ those activities. A claim ‘arises from’ an act when the act ‘ “ ‘forms the basis for the plaintiff's cause of action’....” ’ (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66....) ‘[T]he “arising from” requirement is not always easily met.’ (Ibid.) A cause of action may be ‘triggered by’ or associated with a protected act, but it does not necessarily mean the cause of action arises from that act. (City of Cotati, supra, 29 Cal.4th at pp.77-78....) As our Supreme Court noted: ‘California courts rightly have rejected the notion “that a lawsuit is adequately shown to be one ‘arising from’ an act in furtherance of the rights of petition or free speech as long as suit was brought after the defendant engaged in such an act, whether or not the purported basis for the suit is that act itself.” [Citation.]’ (Id. at p. 77....)” (Kolar, supra, 145 Cal.App.4th at pp. 1537-1538.)
In the present case, contrary to Doyle and Caselli’s arguments, the gravamen of the allegations in the complaint is not protected activity under the anti-SLAPP statute. The causes of action alleged in the complaint relate to Doyle and Caselli’s negligent representation of Valentine in his role as trustee of the KMP Trust. Like the legal malpractice cases cited above, the allegations here did not arise out of Doyle and Caselli’s exercise of petitioning rights, but rather out of their negligent representation of the Valentine in his role as trustee of the KMP Trust, including failing to properly advise Valentine on prudent investor standards, or the fiduciary obligations of a trustee. The fact that Valentine’s conduct as trustee lead to litigation in the underlying trust matter does not elevate Doyle and Caselli’s conduct to protected petitioning activity within the meaning of the anti-SLAPP statute. Any petitioning activities that occurred in this case, including filing responsive pleadings in the trust matter, occurred as a result of Doyle and Caselli’s alleged malpractice in negligently advising Valentine, and are not the basis of the malpractice claim. Therefore, Doyle and Caselli’s conduct is not protected under the anti-SLAPP statute.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.