Switzer v. McCormick, Barstow CA5

Filed 2/27/15 Switzer v. McCormick, Barstow, et al. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

TED SWITZER, F068907 Cross-complainant and Respondent, (Super. Ct. No. 11CECG04395) v.

McCORMICK, BARSTOW, SHEPAPRD, OPINION WAYTE & CARRUTH et al.,

Cross-defendants and Appellants.

APPEAL from an order of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge. Clifford & Brown, Stephen T. Clifford and John R. Szewczyk for Cross- defendants and Appellants. Gregory L. Altounian and C. Michael Carrigan for Cross-complainant and Respondent. -ooOoo-

Appellants, McCormick, Barstow, Sheppard, Wayte & Carruth LLP (McCormick Barstow), Gordon M. Park, Dana B. Denno and Irene Fitzgerald, challenge the trial court’s denial of their motion to strike certain derivative causes of action alleged against them by respondent Ted Switzer on behalf of Flournoy Management, LLC (Flournoy) as a strategic lawsuit against public participation (SLAPP) under Code of Civil Procedure1 section 425.16. Switzer and Robert Wood each own 50 percent of Flournoy. Wood is Flournoy’s sole manager. Switzer filed the original action to compel Flournoy and Wood to permit Switzer to inspect Flournoy’s records. Flournoy and Wood, who were both represented by McCormick Barstow, resisted Switzer’s efforts. At issue are certain causes of action in the cross-complaint filed by Switzer. Switzer named McCormick Barstow and the individual attorneys as cross-defendants on behalf of Flournoy based on allegations that they breached their fiduciary duty to Flournoy by concurrently representing Flournoy and Wood despite the existence of a potential or actual conflict. McCormick Barstow argues that the conduct at issue is entitled to protection under section 425.16 because it occurred in connection with a judicial proceeding. The trial court correctly concluded that the conduct constituting the gravamen of Switzer’s causes of action against McCormick Barstow is not free speech or petitioning activity entitled to protection under section 425.16. Rather, those causes of action arose from the alleged breach of McCormick Barstow’s ethical and professional duties to Flournoy. Accordingly, the order will be affirmed.