MALPRACTICE SUIT NO SLAPP
When a disgruntled client sued for malpractice, San Mateo attorney Bradley Kass responded by filing a motion to dismiss under the state’s anti-SLAPP statute.
He argued that he had done his best for his client and that his work for her constituted protected activity for which he couldn’t be sued.
Last week, San Francisco’s First District Court of Appeal disagreed and let Marion Walsh’s suit proceed.
Walsh, identified in the ruling(.pdf) as a postal carrier, hired Kass � a partner in Kass & Kass � to represent her in a San Francisco Superior Court suit against a customer she claimed had assaulted and injured her. The defendant won at trial.
Walsh then sued Kass claiming that, among other things, he didn’t call any percipient witnesses, hadn’t warned her about the consequences of rejecting a settlement, breached client confidences, failed to perform a competent investigation, and exploded in anger, throwing his briefcase at her during a settlement conference.
In his motion to strike the suit as a Strategic Lawsuit Against Public Participation, Kass argued that there were no percipient witnesses to call, he had fully explained the consequences of failing to settle, and that he hadn’t gotten angry at the settlement conference.
The justices unanimously held that the suit didn’t challenge speech regarding a public issue.
“Kass’ conduct involved only the rights of two private individuals who had been involved in an altercation,” Justice Sandra Margulies wrote, “with no implications for the public at large beyond its ordinary interest in the proper administration of justice. The subject of the litigation was a private matter, unconnected to any public issue.”
Justices James Marchiano and Douglas Swager concurred.
Margulies also found that Walsh’s allegations against Kass didn’t come under the anti-SLAPP statute because they didn’t concern Kass’ statements or other expressive acts, but rather his failure to act or speak.
“For example,” she wrote, “Walsh alleges that he failed to advise her properly with respect to settlement risks, failed to call appropriate witnesses, failed to disclose a conflict of interest, failed to investigate her case thoroughly, and failed to keep her informed about the litigation.
“None of these failures,” she added, “constituted an affirmative public expression of ideas.”
Margulies, however, noted that Walsh’s suit made one allegation that wasn’t about a failure to act � getting angry and throwing a briefcase. Nonetheless, the court found that act � albeit in a public hallway � didn’t fall within the “official proceedings” protected by the anti-SLAPP statute.
“It was neither made during an official proceeding nor submitted to an official body,” Margulies wrote. “Rather, the outburst occurred in a hallway, unconnected with any ongoing hearing.”
Kass couldn’t immediately be reached for comment Friday.
The unpublished ruling is Walsh v. Kass, A112656.
� Mike McKee
REHEARING ON JUVI OPINION?
Responding to an appellate ruling that had juvenile prosecutors and defense attorneys very confused last month, a Santa Clara County deputy public defender is arguing for a rehearing.
In his petition filed Feb. 12, Seth Flagsberg argues that the Sixth District Court of Appeal’s ruling � which juvenile advocates considered a partial victory � was based on a theory the prosecutor never raised.
On Jan. 22, the appeal court ruled that a contested juvenile adjudication could not be considered a strike under the Three Strikes law. But if the juvenile admitted to a crime, then it could later be considered a strike.
The Sixth District reasoned that because Flagsberg’s client, Vince Nguyen, had admitted to his offense in juvenile court years ago, his sentence wasn’t unconstitutional. So the ruling did nothing to shave time off his sentence, which was double the mitigated term � a result of that previous strike.
“Since appellant has not had an opportunity to address this theory employed to deny him relief, rehearing is compelled as a matter of law,” wrote Flagsberg, citing Government Code � 68081. It says that when appellate judges base certain decisions on an issue that wasn’t proposed or briefed by the parties, the court is supposed to give the sides a chance to add supplemental briefing on the issue � or allow a rehearing.
Flagsberg also argues that Nguyen never signed a jury trial waiver, so his admission to the facts that led to the aggravated sentence was unconstitutional.
Deputy Attorney General Eric Share faces his deadline to respond to the petition today, since the court loses jurisdiction in the case Wednesday. Many juvenile defense attorneys have said the case is likely to be reheard because of the ruling’s conflicting message and have struggled with how to advise their clients pending the outcome of the petition.
Flagsberg said he expects the court to return with a decision either today or Wednesday.
� Millie Lapidario
