Drell v. Cohen

Filed 12/5/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MICHAEL DRELL, B253688

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BC522276) v.

BOB M. COHEN et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of Los Angeles County. Michael L. Stern, Judge. Affirmed.

Barry L. Cohen & Associates, Barry L. Cohen and El Mahdi Young for Defendants and Appellants.

Law Offices of Robert S. Fink and Robert S. Fink for Plaintiff and Respondent.

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Defendants Bob M. Cohen and Bob M. Cohen and Associates Law Corporation represented nonparty Paul Slack in a personal injury action on a contingent fee basis. They withdrew from the representation and plaintiff Michael Drell took over Mr. Slack’s case. Defendants asserted an attorney fee lien, informing one of the insurers in the personal injury case that any payment of funds to Mr. Slack was subject to a lien for their fees incurred during their representation. Plaintiff negotiated the settlement of Mr. Slack’s case, but the insurer made the check payable to plaintiff and defendants. Plaintiff filed this declaratory relief action, to determine the status of defendants’ lien. Defendants filed a special motion to strike the complaint, averring it arose from their protected activity of asserting a lien in a demand letter that threatened litigation. (Code Civ. Proc., § 425.16, subd. (b)(1).)1 The trial court denied the motion, finding the gravamen of the complaint was not protected activity. The trial court also denied plaintiff’s request for attorney fees. On appeal, defendants contend the trial court erred in denying their motion, reasoning the assertion of their lien was a statement made in anticipation of litigation, and that plaintiff’s declaratory relief action therefore targeted protected activity. (§ 425.16, subd. (b)(1).) Although plaintiff did not cross-appeal, he contends the trial court erred when it denied his attorney fees in opposing defendants’ motion, and urges that this court should award his fees incurred below, as well as on appeal, for defendants’ “frivolous” motion and appeal. We agree with the trial court that this lawsuit does not arise from protected activity, and affirm the order below. We deny plaintiff’s request for attorney fees. BACKGROUND On January 19, 2011, Mr. Slack retained defendants to represent him following an automobile collision, with a contingent fee contract entitling defendants to 40 percent of any recovery he obtained. On November 16, 2011, defendants moved to be relieved as