2022 In Review: Cases Involving Lawyers

• Jurisdiction: California,United States
• Law Firm: Lewis Brisbois Bisgaard & Smith LLP
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Insolvency/Bankruptcy/Re-structuring, Corporate and Company Law, Insolvency/Bankruptcy, Arbitration & Dispute Resolution
• Author: Mr Kenneth Feldman and Alex A. Graft
• Published date: 25 January 2023

The anti-SLAPP statute, codified in Code of Civil Procedure section 425.16, was a hot topic before the appellate courts in 2022 when it came to cases involving lawyers. Both its reach and potential for abuse were the subject of multiple rulings, underscoring its prominence as a tool in cases against lawyers. Some of the 2022 cases confronted run-of-the-mill fact patterns while others were more bizarre, although none appear to have arisen out of malicious prosecution - unlike most prior years.

Apart from the anti-SLAPP cases, the appellate courts also found time to publish cases concerning the funding of arbitration in legal malpractice cases involving an allegedly indigent plaintiff, the statute of limitations applicable to claims against lawyers (another issue seemingly annually before the courts), the more than 140 year old Barton doctrine pertaining to claims which arise in the course of bankruptcy, and the limits of disqualification.

Anti-SLAPP Cases

Catlin Ins. Co., Inc. v. Danko Meredith Law Firm, Inc., 73 Cal. App. 5th 764, was one of the more strange anti-SLAPP cases. It presented an odd procedural issue pertaining to fees awardable when a case is dismissed while an anti-SLAPP motion is pending. It is well settled both that a voluntary dismissal does not eliminate fee exposure under Code of Civil Procedure section 425.16(c), and that fees are mandatory in the event that the movant can establish they would have prevailed on the motion but for the dismissal - both of which the Catlin Court affirmed. In that scenario, an anti-SLAPP movant defendant will often file a fees motion after the dismissal and request that the Court consider whether the movant would have prevailed as the predicate to awarding fees. But the law firm defendant in Catlin did not want to do that for some reason (the Catlin court implied it may have been due to a concern about the rare fee boomerang that can occur if an anti-SLAPP motion is deemed "frivolous or is solely intended to cause unnecessary delay"), and instead asked the trial court to rule on the anti-SLAPP motion despite the dismissal so it could decide whether to subsequently pursue fees.

Neither the trial court nor the Catlin Court was interested in jumping through such hoops. The Catlin Court rejected the request as essentially an advisory opinion on what it deemed an unripe issue. The question of whether the law firm defendant was likely to prevail, and correspondingly entitled to fees, could only be raised via motion for fees, which the anti-SLAPP movant had simply not filed.

Exactly 50 years ago, Johnny Nash released his #1 hit, "I Can See Clearly Now," which may be (or maybe not) what the general counsel for a health care company was thinking after being assessed a litigation adversary's fees in Clarity Co. Consulting, LLC v. Gabriel, 77 Cal. App. 5th 454, after being found to have abused the anti-SLAPP process. Maybe the law firm defendants in Catlin were right to be concerned as Clarity made clear that fee exposure is a risk, rare as it may be, to those who...