Chodos v. Cole – Claims for Indemnification for Attorney Malpractice Not Covered by Anti-SLAPP Law
Last week, the Court of Appeal, Second District, issued a published decision in Chodos v. Dole. The case involved a cross-complaint that was filed against Hillel Chodos and another attorney for malpractice in connection with their representation in, and settlement of, a marital dissolution. Chodos then cross-complained against other attorneys for indemnification for any malpractice award against him because, he alleged, those other attorneys had rendered advice concerning the settlement of the dissolution. The attorneys filed an anti-SLAPP motion and the trial court granted their motion, striking Chodos’ cross-complaint under section 425.16. The Court of Appeal reversed, holding that the claim did not involved protected litigation activity under the anti-SLAPP statute. While it is established that the anti-SLAPP statute does not apply to claims of attorney malpractice (See e.g. Hylton v. Rogozienski, Inc. (2009) 145 Cal.App.4th 1532), this opinion went further to conclude that the anti-SLAPP statute also does not apply to claims for equitable indemnity when the principle basis of claims concern conduct constituting a “breach of professional duty”, not statements made in connection with litigation. “For purposes of the anti-SLAPP statute, a claim by an attorney against other attorneys for equitable indemnity in connection with a claim of attorney malpractice is not distinguishable from a client’s claim against an attorney for malpractice.”
The People ex rel. Strathmann v. Acacia Research Corp. – Public Interest Exception Applies to Qui Tam Action
Also last week, the Court of Appeal, Fourth District, issued a published decision in The People ex rel. Strathmann v. Acacia Research Corp. The case involved a qui tam action (whistleblower claim) brought by Michael Strathmann “on behalf of the general public” under Insurance Code section 1871.7. The main issue that the Court of Appeal resolved was whether or not the case was brought solely in the public interest or on behalf of the general public, and therefore exempt from the anti-SLAPP law per CCP § 425.17(b). The defendants argued that the plaintiff was not pursuing this lawsuit solely for the public benefit because “he seeks to personally recover ‘at least 40% but not greater than 50% of the proceeds of this action,’ which could result in an award to [plaintiff] of between $30 million and $37.5 million.” The Court of Appeal disagreed and held that the case fell within the public interest exception of 425.17(b). Distinguishing this case from Club Members for an Honest Election v. Sierra Club (2008) 45 Cal. 4th 309, the court noted that Club Members was not a qui tam action and portions of the plaintiffs’ relief sought there were to advance their own personal interests. Here, the court said that plaintiff’s bounty sought was “analogous to a lawyer’s contingent fee [citation], which is not considered personal relief under section 425.17(b)(1), and which is necessary to encourage qui tam actions.”