In March of 2011, Vafi v. McCloskey (2011) 193 Cal.App.4th 874 held that the shorter one-year statute of limitations applied to malicious prosecution actions brought against attorneys instead of the two-year that applies to malicious prosecution actions generally against non-lawyers.
Thursday, August 11, 2011
Sunday, August 7, 2011
SLAPP MALPRACTICE. IT'S HERE TO STAY!! ANGRY SLAPP PLAINTIFF SUES ATTORNEY
With the ever increasing number of anti-SLAPP motions that are being filed, granted, and won by defendants throughout California in state, federal, trial, and appellate courts every month, the number of angry SLAPP plaintiffs that get hit with high fee awards is rising exponentially. [CCP 425.16(c)] Every civil litigation attorney who files an action on behalf of a plaintiff or cross-complainant is now at an ever increasing risk of being hit with a malpractice suit filed by an irate client who lost an anti-SLAPP motion and got hit hard with a hefty SLAPP fee award. To make the point eminently clear, every time an attorney represents a losing plaintiff in a SLAPP case, SLAPP fees are mandatory and often exceed $100K. If this state of affairs is not enough to make an angry client sue for malpractice, the losing SLAPP plaintiff and the attorney are also simultaneously exposed to a SLAPPback malicious prosecution suit from the prevailing SLAPP defendant in the underlying action under CCP 425.18. Soukup v. Hafif (2006) 39 Cal.4th 260. So the former client's potential damages against his attorney for malpractice have now escalated dramatically. And even if the attorney is able to successfully defend the malpractice action, it can irreparabley ruin the attorney's reputation even if the attorney successfully defends the action years later. Moreover, defending a malpractice action is a a major expense, time waster, and source of stress for attorneys facing such an action. What follows is a case in point.
In January of 2011, I testified as a defense expert in a case that resulted in what is believed to be the first anti-SLAPP malpractice verdict in California. In a case called Lefkowitz v. Gruenberg (Case No. 37-2009-00101969-CU-PN-CTL) San Diego Superior Court, I was retained by Lewis Brisbois, San Diego to testify as a standard of care and attorney fee/ethics expert for the defense in a legal malpractice/breach of fiduciary duty action against an attorney where the key allegation was that the attorney allegedly mishandled the underlying defamation action by failing oppose the motion SLAPP motion properly and failing to spot the SLAPP issue and properly advise the client/plaintiff that he would be liable for substantial attorney's fees and costs if he lost the SLAPP motion and appeal. In the underlying defamation action, the court awarded the prevailing SLAPP defendant $86,000.00 in SLAPP fees against plaintiff after losing SLAPP motion on appeal. Even though the attorney obtained a net positive settlement of $35, 000.00 in a related whistleblower cause of action, the former client/defamation plaintiff sued his attorney claiming he would have obtained a better settlement had he not been saddled with the $86K SLAPP fee award against him.
We believe that Lefkowitz is the first SLAPP malpractice verdict in the State of California as the LA Daily Journal and other verdict commentators are unaware of any other legal malpractice verdicts arising from the attorney's representation of a client in an underlying SLAPP case.
DEFENSE VERDICT - 1/6/11 - HON. JOHN S. MEYER SAN DIEGO SUPERIOR COURT
The jury found "no negligence" as to whether the attorney failed to timely and properly advise his former client of the risk of paying the defendant's attorney's fees if the employer's SLAPP appeal was successful. The jury did not reach the issues of causation and damage. Mr. Moneer testified that two attorneys and one trial judge misapplied the anti-SLAPP law to the defamation claim in the prior action. Simply because the Court of Appeal reversed and remanded for mandatory SLAPP fees does not mean that the attorney fell below the standard of care in handling the defamation/SLAPP action for the ordinary employment litigation practitioner.
ATTORNEYS: Peter Garchie, Esq. , Lewis Brisbois, San Diego - Defense
Shauna Hagan, Esq., Lewis Brisbois, San Diego - Defense
Alicia I . Dearn, San Diego - Plaintiff
EXPERTS: James J. Moneer, Esq. San Diego - Defense
Peter R. Thompson, Esq. - Plaintiff
For more facts and details about the case see www.slapplaw.com and click on attorney profile and scroll down to Lefkowitz v. Gruenberg.
WHAT CAN PLAINTIFF'S CIVIL LITIGATION ATTORNEYS DO?
1. SCREEN, SCREEN, SCREEN FOR SLAPP ISSUES BEFORE THE PLEADING IS FILED.
2. ADVISE YOUR CLIENTS IN WRITING REGARDING SLAPP FEES
3. CONSULT AN EXPERT TO SCREEN THE COMPLAINT, ASSIST WITH OPPOSITION, AND/OR GIVE EXPERT TESTIMONY TO CUT THE FEE AWARD DOWN SUBSTANTIALLY
In January of 2011, I testified as a defense expert in a case that resulted in what is believed to be the first anti-SLAPP malpractice verdict in California. In a case called Lefkowitz v. Gruenberg (Case No. 37-2009-00101969-CU-PN-CTL) San Diego Superior Court, I was retained by Lewis Brisbois, San Diego to testify as a standard of care and attorney fee/ethics expert for the defense in a legal malpractice/breach of fiduciary duty action against an attorney where the key allegation was that the attorney allegedly mishandled the underlying defamation action by failing oppose the motion SLAPP motion properly and failing to spot the SLAPP issue and properly advise the client/plaintiff that he would be liable for substantial attorney's fees and costs if he lost the SLAPP motion and appeal. In the underlying defamation action, the court awarded the prevailing SLAPP defendant $86,000.00 in SLAPP fees against plaintiff after losing SLAPP motion on appeal. Even though the attorney obtained a net positive settlement of $35, 000.00 in a related whistleblower cause of action, the former client/defamation plaintiff sued his attorney claiming he would have obtained a better settlement had he not been saddled with the $86K SLAPP fee award against him.
We believe that Lefkowitz is the first SLAPP malpractice verdict in the State of California as the LA Daily Journal and other verdict commentators are unaware of any other legal malpractice verdicts arising from the attorney's representation of a client in an underlying SLAPP case.
DEFENSE VERDICT - 1/6/11 - HON. JOHN S. MEYER SAN DIEGO SUPERIOR COURT
The jury found "no negligence" as to whether the attorney failed to timely and properly advise his former client of the risk of paying the defendant's attorney's fees if the employer's SLAPP appeal was successful. The jury did not reach the issues of causation and damage. Mr. Moneer testified that two attorneys and one trial judge misapplied the anti-SLAPP law to the defamation claim in the prior action. Simply because the Court of Appeal reversed and remanded for mandatory SLAPP fees does not mean that the attorney fell below the standard of care in handling the defamation/SLAPP action for the ordinary employment litigation practitioner.
ATTORNEYS: Peter Garchie, Esq. , Lewis Brisbois, San Diego - Defense
Shauna Hagan, Esq., Lewis Brisbois, San Diego - Defense
Alicia I . Dearn, San Diego - Plaintiff
EXPERTS: James J. Moneer, Esq. San Diego - Defense
Peter R. Thompson, Esq. - Plaintiff
For more facts and details about the case see www.slapplaw.com and click on attorney profile and scroll down to Lefkowitz v. Gruenberg.
WHAT CAN PLAINTIFF'S CIVIL LITIGATION ATTORNEYS DO?
1. SCREEN, SCREEN, SCREEN FOR SLAPP ISSUES BEFORE THE PLEADING IS FILED.
2. ADVISE YOUR CLIENTS IN WRITING REGARDING SLAPP FEES
3. CONSULT AN EXPERT TO SCREEN THE COMPLAINT, ASSIST WITH OPPOSITION, AND/OR GIVE EXPERT TESTIMONY TO CUT THE FEE AWARD DOWN SUBSTANTIALLY
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