Wednesday, November 23, 2016

Don't Go There.

Contreras v. Dowling, No. A142646 (D1d5, as modified Nov. 18, 2016)

No matter how much your client wants to, it is a really bad idea to sue opposing counsel for litigating against your client. 

An attorney’s acts done in connection with litigation—including public statements, giving advice, filing pleadings, etc.—are shielded from liability under the litigation privilege in Civil Code § 47(b) for any cause of action other than malicious prosecution. Moreover, statements or acts done in connection with litigation are also almost always “protected activity” under the anti-SLAPP statute. So a lawsuit against opposing counsel almost always ends in a one-two punch. The case is subject to the anti-SLAPP statute and cannot succeed due to the privilege. Which leads to a dismissal and an order awarding Lawyer his or her fees under Code of Civil Procedure § 425.16(c)(1).

That’s what happens here. Plaintiff tries to get around the fact that her claim arises from Lawyer’s advocacy by claiming that she is proceeding on a conspiracy or aiding and abetting theory under which the lawyer is derivatively liable for the acts of his client. But that doesn’t work. Even if the claims are grounded in conspiracy or aiding and abetting, those theories still require some act by Layer. Those acts are still, essentially, advocating for and advising a client in connection with a litigation. Which is protected activity. And subject to the § 47(b) privilege. So the motion should have been granted.


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