Montgomery v. Klinedinst CA4/1 (2014) · DecisionDepot
Montgomery v. Klinedinst CA4/1
California Court of Appeal Dec 31, 2014 No. D063946Unpublished
Filed 12/31/14 Montgomery v. Klinedinst CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
RICHARD MONTGOMERY et al., D063946
Plaintiffs and Respondents,
v. (Super. Ct. No. 37-2012-00086633- CU-NP-CTL) KLINEDINST PC,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
William S. Dato, Judge. Affirmed.
Daniel S. Agle for Defendant and Appellant.
Law Offices of Friedberg & Bunge, Thomas F. Friedberg and Brittany D.
Botterill for Plaintiffs and Respondents.
Klinedinst PC (Klinedinst) appeals from an order denying its special motion to
strike Richard Montgomery's and Francis Quirino's (together, Plaintiffs) complaint.
Klinedinst brought the motion under Code of Civil Procedure section 425.16, which
allows the early dismissal of an action that is determined to be a strategic lawsuit against
public participation (SLAPP) and is thus known as the anti-SLAPP statute.
(Undesignated statutory references are to the Code of Civil Procedure.) We conclude
the anti-SLAPP statute is inapplicable because the gravamen of the complaint does not
arise from protected activity. Accordingly, we affirm.
["Legal malpractice is not an activity protected under the anti-SLAPP statute."].) "If the
8
core injury-producing conduct upon which plaintiff's claim is premised does not rest on
protected speech or petitioning activity, collateral or incidental allusions to protected
activity will not trigger application of the anti-SLAPP statute." (Hylton, at p. 1272.)
Here, Plaintiffs sued Klinedinst based on Klinedinst's alleged knowledge,
consent, approval, and ratification of Richardson's conduct between July and September.
Further, Plaintiffs alleged Klinedinst owed them a duty of care and breached that duty
through Richardson's conduct. That conduct included Richardson's alleged failure to
protect Plaintiffs' interests because she did not timely provide them with an itemization
of her fee claim and delayed in agreeing to the issuance of a separate check for the
disputed fees to be held until the parties reached a resolution of their fee dispute.
Plaintiffs point to evidence that they repeatedly asked Richardson to provide an
itemization of her lien, but Richardson did not provide that information for more than
one month. Thereafter, Richardson refused Plaintiffs' proposal to have a separate check
remain uncashed in Friedberg's possession or to have the funds retained in his trust
account. During this time, Montgomery's former wife filed a judgment lien in the
Montgomery Litigation for spousal support. Approximately three months passed
between the time that Richardson filed her notice of attorney lien and Plaintiffs received
their settlement proceeds. Plaintiffs claimed Richardson's conduct prevented
consummation of the settlement in the Montgomery Litigation and thereby delayed their
receipt of the settlement funds.
While Plaintiffs' complaint referred to Richardson's act of filing a notice of
attorney lien, conduct that is covered by the anti-SLAPP statute (see Premier Medical
9
Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th
464, 477), the fact that a cause of action refers to protected activity does not, by itself,
subject the cause of action to a special motion to strike. (Freeman v. Schack (2007) 154
Cal.App.4th 719, 729 ["the fact plaintiffs' claims are related to or associated with
Schack's litigation activities is not enough" to subject such claims to the anti-SLAPP
law].) "Although petitioning activity is part of the evidentiary landscape within which
[Plaintiffs'] claims arose, the gravamen of [Plaintiffs'] claims is that [Richardson and
thereby Klinedinst] engaged in nonpetitioning activity inconsistent with [their] fiduciary
obligations owed to [Plaintiffs]." (Hylton, supra, 177 Cal.App.4th at p. 1272.) In their
complaint, Plaintiffs did not seek to impose liability on Klinedinst based on
Richardson's notice of attorney lien or her conduct in seeking to enforce that lien.
Instead, as discussed above, Plaintiffs' claim against Klinedinst was based on
Richardson's unprotected acts which allegedly resulted in a delay of the settlement in the
Montgomery Litigation.
While we are befuddled by Plaintiffs' claim against Klinedinst as there appears to
be no evidentiary basis for that claim, the anti-SLAPP statute is not the proper
mechanism to strike Plaintiffs' complaint as the gravamen of Plaintiffs' claim against
Klinedinst is Richardson's failure to protect Plaintiffs' interests rather than Richardson's
petitioning activity; thus, the anti-SLAPP statute does not apply. In view of our
conclusion, we need not decide whether Plaintiffs established a probability of prevailing
on their claim. (PrediWave Corp. v. Simpson Thacher & Bartlett LLP (2009) 179
Cal.App.4th 1204, 1228; Freeman v. Schack, supra, 154 Cal.App.4th at p. 733
10
[when defendant does not show "protected activity" underlies plaintiff's claims, it is
irrelevant whether plaintiff has shown a "probability of prevailing"].)
DISPOSITION
The order is affirmed. Respondents are entitled to costs on appeal.
MCINTYRE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
11
AI Brief
AI-generated · verify before citing
Holding. The court held that the anti-SLAPP statute is inapplicable because the gravamen of the plaintiffs' complaint against the law firm arises from alleged professional negligence and breach of fiduciary duty rather than protected petitioning activity.
Issues
Whether the plaintiffs' legal malpractice and breach of fiduciary duty claims against a law firm arise from protected activity under the anti-SLAPP statute.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We conclude the anti-SLAPP statute is inapplicable because the gravamen of the complaint does not arise from protected activity.”
“Legal malpractice is not an activity protected under the anti-SLAPP statute.”