TURNER, P. J., Dissenting. I. INTRODUCTION
I would affirm. The record does not comply with requirements imposed in Supreme Court authority. And in my view the gravamen of the equitable indemnity cross-complaint are written and oral statements made in the course of litigation; all of these written and oral statements are subject to the litigation privilege; and as to one set of cross-defendants, equitable indemnity in the legal malpractice context is unavailable. I would dismiss the appeal from the amount of the attorney fee award entered in favor of cross-defendants, Michael D. Dempsey, Stephen C. Johnson and their law firm, Dempsey & Johnson PC. We have no jurisdiction to consider the amount of the attorney fee award as to them—that order is final. I would affirm the attorney fee award as to cross-defendant, Dana M. Cole.
II. ABSENCE OF A SETTLED STATEMENT OR REPORTER’S TRANSCRIPT
In numerous situations, appellate courts have refused to reach the merits of an appellant’s claims because no reporter’s transcript of a pertinent proceeding or a suitable substitute was provided. (Walker v. Superior Court (1991) 53 Cal.3d 257, 273-274 [279 Cal.Rptr. 576, 807 P.2d 418] [transfer order]; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 [240 Cal.Rptr. 872, 743 P.2d 932] [attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 [224 Cal.Rptr. 664, 715 P.2d 624] (lead opn. of Grodin, J.) [new trial motion hearing]; In re Kathy P. (1979) 25 Cal.3d 91, 102 [157 CaLRptr. 874, 599 P.2d 65] [hearing to determine whether counsel was waived and the minor consented to informal adjudication]; Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1672 [26 Cal.Rptr.3d 638] [transcript of judge’s ruling on an instruction request]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 [94 Cal.Rptr.2d 143] [trial transcript when attorney fees sought]; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [89 Cal.Rptr.2d 618] [surcharge hearing]; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [56 Cal.Rptr.2d 700] [nonsuit motion where trial transcript not provided]; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [37 Cal.Rptr.2d 126] [monetary sanctions hearing]; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 [254 CaLRptr. 492] [reporter’s transcript fails to reflect content of special instructions]; Buckhart v. San Francisco Residential Rent etc. Bd. (1988) 197 Cal.App.3d 1032, 1036 [243 Cal.Rptr. 298] [hearing on Code Civ. Proc., § 1094.5 petition]; Sui v. Landi (1985) 163 Cal.App.3d 383, 385-386 [209 CaLRptr. 449] [motion to dissolve preliminary injunction hearing]; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 713-714 [152 CaLRptr. 65] [demurrer hearing]; Calhoun v. Hildebrandt (1964) 230 [708]Cal.App.2d 70, 71-73 [40 Cal.Rptr. 690] [transcript of argument to the jury]; Ehman v. Moore (1963) 221 Cal.App.2d 460, 462 [34 Cal.Rptr. 540] [failure to secure reporter’s transcript or settled statement as to offers of proof]; Wetsel v. Garibaldi (1958) 159 Cal.App.2d 4, 10 [323 P.2d 524] [order confirming arbitration award].)
At oral argument, the absence of a settled statement or a reporter’s transcript was raised with one of the plaintiffs, Hillel Chodos. Mr. Chodos had been repeatedly advised in written communications by the clerk of this court, made at the behest of a justice, of the need for a reporter’s transcript or suitable substitute. Mr. Chodos, the foregoing authority notwithstanding, indicated there was no need for additional transcripts.1 In response to Mr. Chodos’s claim he would be unable to make an augmentation motion just prior to oral argument, the undersigned stated, “I have never denied a request to augment the record to include exhibits, transcripts—sometimes we get transcripts after the cause is submitted and all those things happen so that assumption in my perspective, sir, is incorrect.” In terms of whether something was missing from the reporter’s transcript, at oral argument, counsel for cross-defendant, Dana M. Cole, explained that it would be improper for him to refer to matters outside the record: “I want to address the contention on the inadequate record. On page 2 of our respondents’ brief and our supplemental brief we certainly advanced this issue and cited controlling California Supreme Court authority on failing to provide a reporter’s transcript and it would be improper for us to tell you what was in the reporter’s transcript or what was missing because we would be quoting things outside the record. I merely cite many different examples of . . . dealing with affirmance as a matter of law because of an inadequate reporter’s transcript and I don’t want to belabor my point—I just want to tell the court that we did preserve this issue and responded forcefully in our supplemental brief as well when the court asked for further briefing.” (This issue was also pursued in briefing by Mr. Cole and the remaining three cross-defendants, Mr. Dempsey, Mr. Johnson and their law firm.)
I agree with cross-defendants that the orders under review should be affirmed on the absence of adequate record grounds. There is no agreement between the parties as to what occurred in the trial court. We have no idea as [709]to whether evidentiary issues arose or there were concessions by either side. The burden of securing a reporter’s transcript or a settled statement is de minimis, particularly given their importance in the truth-seeking function of the judiciary. Most importantly, the duty of an appellate court is to correctly resolve issues. The requirement of a settled statement or a reporter’s transcript materially increases the integrity of the appellate process. (I am not suggesting that my colleagues’ analysis lacks uprightness—the most skeptical reader of the majority opinion would agree it is an integrity-driven, thoughtful analysis.) Our task is to find the truth; nothing less. In this case without any legally correct justification, Mr. Chodos has failed to comply with his duty.
IH. SPECIAL MOTIONS TO STRIKE
A. The Motions
Based upon the record provided, I would affirm. In determining whether a cause of action arises from the exercise of free speech or petition rights, we consider the pleadings and the evidence. (Code Civ. Proc.,2 § 425.16, subd. (b)(2); Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1166 [131 Cal.Rptr.3d 478].)
B. The Pleadings
1. The complaint
According to the complaint, plaintiffs, Mr. Chodos and Mr. Gibson, were retained in 2007 by the defendant, Navabeh P. Borman. The complaint does not allege that any written retainer agreement was entered into between plaintiffs and the defendant. Plaintiffs agreed to represent the defendant in a marital dissolution action brought by her former spouse, Burton Borman. Mr. Chodos was to be paid $1,000 per hour and Mr. Gibson’s hourly rate was $500. Mr. Gibson was required to maintain daily time records. However, Mr. Chodos, despite being paid $1,000 per hour, was not required to “maintain daily time records” but instead would merely “estimate” his time.
In March 2007, the defendant expressed a desire to reconcile with Mr. Borman. However, the reconciliation was short lived. According to the complaint, Mr. Borman did not honor his financial obligations to the defendant or to pay her attorney fees. Therefore, at her request, plaintiffs filed suit against Mr. Borman for breach of premarital promises, which the parties refer to as the “Marvin” action. In addition, plaintiffs alleged a cause of action against [710]Mr. Borman’s son for intentional interference with an unspecified contract. Plaintiffs also filed a second dissolution of marriage action. In the fall of 2008, the defendant informed plaintiffs that she was unable to pay their fees on a current basis. The defendant agreed though that plaintiffs were entitled to reasonable fees based on their regular hourly rates for representing her in the foregoing litigation.
According to the complaint, the defendant sought the advice of “separate and independent counsel” concerning the attorney fee issue. As a result, the complaint alleges the following agreement was entered into: “[Defendant agreed that a reasonable fee for plaintiffs’ services would not be less than their hourly fees, but since she probably would be unable to pay them unless she obtained a recovery, would be equal to 15% of any recovery for her resulting from the civil action and the marital dissolution proceeding up to $10 million, plus 20% of any additional recovery up to $25 million, plus 22.5% of any recovery in excess of $25 million.”
During 2009, the defendant began to lose confidence in plaintiffs. As a result, the defendant hired three sets of attorneys: first, she hired a “separate and independent lawyer”; defendant then hired a “second separate and independent lawyer”; and then she retained a “third separate and independent lawyer specializing in tax law . . . .”
The defendant never paid any of the fees nor has she reimbursed plaintiffs $24,921.86 for out-of-pocket costs. The defendant only reimbursed plaintiffs for some but not all of their out-of-pocket costs. At some point, Mr. Borman had been ordered to pay $215,000 for the defendant’s attorney fees to plaintiffs. The $215,000, which was actually paid to plaintiffs, was credited to the defendant’s account.
2. The defendant’s legal malpractice and conversion cross-complaint
On July 9, 2010, the defendant filed a legal malpractice and conversion cross-complaint against plaintiffs. Filing the cross-complaint on her behalf were the cross-defendants, Mr. Dempsey and his law firm. As will be noted, immediately after filing the cross-complaint, Mr. Chodos sued Mr. Dempsey, Mr. Johnson and their law firm. According to the defendant’s cross-complaint, Mr. Chodos never meaningfully prepared either of the marital dissolution matters or the civil suit for trial. According to the cross-complaint: “[Mr.] Chodos never meaningfully ‘worked up’ either case or prepared for trial. He propounded almost no discovery; hired an incompetent art appraiser who inflated the values of [the Bormans’] art collection, failed and refused to prepare required joint trial submissions; failed to produce witnesses as [711]ordered by the court, and failed to preserve evidence so that [defendant] could proceed to trial or engage replacement counsel.” As a result of plaintiffs’ neglect of the litigation, the defendant hired two additional attorneys to review plaintiffs’ mishandling of her cases. In addition, she hired a tax attorney to review the tax consequences of the settlement recommended by plaintiffs. According to the defendant’s cross-complaint, “The litigation attorneys found that Plaintiffs had so failed to prepare the matters for trial that no attorney could step in and be able to prepare for the fast approaching trial date and that [Mr. Chodos] had previously sought continuances so as to make a request for additional time on the eve of trial highly unlikely to succeed.” In addition, plaintiffs had misrepresented to the defendant that the settlement would be “ ‘tax free.’ ” In fact, the tax issues had not even been addressed by plaintiffs. In October 2009, Mr. Chodos demanded that any settlement proceeds generated from the settlement be deposited in his trust account. As a result, the defendant was forced to terminate Mr. Chodos and retain new counsel. The new attorney requested that Mr. Chodos produce the defendant’s litigation file. Mr. Chodos refused to do so until he was provided notice that the defendant would seek an ex parte order to turn over her litigation file.
The first cause of action in the defendant’s cross-complaint is for legal malpractice. According to the first cause of action, in both the marital dissolution and Marvin litigation, plaintiffs represented that they had special expertise. Plaintiffs are alleged in the defendant’s cross-complaint to have engaged in the following acts of legal malpractice: Mr. Chodos intentionally refused to enter into any written fee agreement or keep track of his hours; Mr. Chodos neglected to conduct “essential discovery” and failed to preserve evidence; they failed to retain a competent art appraiser or “conspired” with the appraiser to inflate the art’s value; they failed to explain the overvaluations in advance of the decision to exchange “cash for art based on [the] appraised prices” at the time of the settlement; they misrepresented the material terms of the settlement agreement so as to require the retention of separate counsel; they failed to preserve evidence or conduct discovery concerning a diversion of funds from certain properties; they fraudulently agreed to represent the defendant during trial without any intent to actually try the case; they refused to prepare joint submission in pretrial documents; they failed to enforce an interim family court order; they failed to adequately advise the defendant on tax issues to the point that it was necessary she retain separate tax counsel at her own expense; they failed to execute a substitution of attorneys and turn over their litigation files; and they converted her property, including a handgun. The second cause of action is for conversion, which alleges that the defendant entrusted Mr. Chodos with a handgun. Mr. Chodos had refused to return the defendant’s handgun to her.
[7123]. Plaintiffs’ equitable indemnity cross-complaint
On August 13, 2010, plaintiffs filed their equitable indemnity cross-complaint. It is plaintiffs’ August 13, 2010 equitable indemnity cross-complaint that is subject to the special motions to strike. Plaintiffs’ cross-complaint is entitled, “Verified Cross-Cross-complaint of Chodos for Equitable Indemnity.” After repeating the complaint’s discussion about the settlement of the lawsuits with Mr. Borman, plaintiffs expanded on their allegations about the defendant’s use of separate counsel. According to plaintiffs’ equitable indemnity cross-complaint: “[Ajfter seeking and obtaining advice ... on the subject of [plaintiffs’] fees from separate and independent counsel, Dana M. Cole, defendant agreed that a reasonable fee for [their] services would not be less than their hourly fees, but since she probably would be unable to pay them unless she obtained a recovery, would be equal to 15% of any recovery for her resulting from the civil [and marital dissolution] action[s] . . . .” Thus, according to plaintiffs’ equitable indemnity cross-complaint, Mr. Cole advised the defendant concerning the modification of the attorney fee agreement. Mr. Cole was hired “in or about” January 2009.
Around May 2009, Mr. Johnson, who was acting on behalf of Mr. Dempsey and their law firm, was hired to advise the defendant. Gary S. Wolfe, a tax specialist who is not a party to this appeal, was retained around September 2009. After the fall 2009 settlement was successfully negotiated, the defendant discharged plaintiffs. In plaintiffs’ stead, Mr. Johnson and his law firm were substituted into the marital dissolution and Marvin actions to represent the defendant. This was done solely for the purpose of avoiding any payment of fees to plaintiffs. The equitable indemnity cross-complaint alleges the following concerning the conduct of Mr. Johnson, Mr. Dempsey and their law firm and Mr. Cole: “[Mr. Chodos] maintains . . . that [defendant’s] cross-complaint for legal malpractice is without merit, and without any foundation in fact or law. However, if and to the extent, if any, that defendant ... is able to establish that the settlement she obtained and accepted was the product or result of legal malpractice, said malpractice [would] have been committed, not by [plaintiffs], but rather by one or more of the cross-defendants [Mr.] Cole, [Mr.] Johnson, [Mr.] Dempsey and Dempsey & Johnson, by each of whom it was independently reviewed and approved, and each of whom concurred in the propriety of said settlement and its benefit to defendant, and advised her to accept it, and on whose advice she relied in deciding to accept it.”
The prayer for relief in plaintiffs’ equitable indemnity cross-complaint states, “WHEREFORE, [Mr.] Chodos prays for a joint and several judgment against. . . cross-defendants, and each of them, for equitable indemnification for any amounts that may be found to be due to defendant... on account of [713]his alleged legal malpractice pertaining to the handling or settlement of her dissolution actions and civil Marvin action; for costs of suit herein; and for such other and further relief as this Court may [deem] just and proper.”
C. Declarations Filed in Support of the Special Motions to Strike Plaintiffs’ Equitable Indemnity Cross-complaint
1. Mr. Cole’s declaration
In support of his special motion to strike plaintiffs’ equitable indemnity cross-complaint, Mr. Cole filed a declaration. Mr. Cole’s declaration states that in approximately January 2009, the defendant consulted with him. The purpose of their consultation was that the defendant was having difficulty communicating with Mr. Chodos. The defendant was “very concerned” that Mr. Chodos was unprepared to proceed to trial on the contract-related and marital dissolution actions. Several months later, in approximately March 2009, the defendant asked Mr. Cole to contact Mr. Chodos. Mr. Cole was asked to inquire of Mr. Chodos concerning the pending status of the contract and marital dissolution litigation.
Mr. Cole immediately contacted Mr. Chodos and they had a detailed discussion about the pending litigation. Mr. Cole’s declaration states: “That contact led to a series of emails and telephone discussions regarding the status of the [pending lawsuits], and in particular, what a reasonable trial fee would be for [Mr.] Chodos to proceed to trial on the contractual claims. [Mr.] Chodos expressed particular concern because [defendant’s] claim involved various properties and an art collection worth millions of dollars and [Mr.] Chodos had not previously entered into a written attorney fee agreement with [defendant], I then continued my consultation with [defendant] and advised what I thought would be a reasonable trial fee. Despite such recommendations regarding any such fee for trial, no written agreement was ever entered into between [Mr. Chodos] and [defendant].”
In approximately May 2009, the defendant retained Mr. Johnson to assist her in assessing the legal matters that Mr. Chodos was handling. Mr. Cole’s declaration described his contact with the defendant: “She continued to ask me to maintain contact with [Mr.] Chodos and advise her whether it was prudent for her to accept a settlement that [Mr. Chodos] had negotiated on her behalf to resolve all pending litigation against her former husband, including the divorce action and the Marvin claims. As a result, [Mr.] Johnson and I had several in person meetings with [Mr.] Chodos and [Mr.] Gibson to discuss and review the details of the proposed settlement. Usually, [defendant] was also present during these meetings which would include periods where [Mr.] Johnson and I would take [defendant] into a private room and [714]confidentially assess the propriety of the proposed settlement—particularly in light of the continuing concerns that [defendant] had about [Mr. Chodos’s] ability to proceed to trial in the event she decided not to accept the proposed settlement.”
Some of the discussions between Mr. Chodos and the defendant were described by Mr. Cole as contentious. Mr. Cole’s role was to facilitate discussions because the defendant had lost confidence in Mr. Chodos. Mr. Cole described the settlement of the marital dissolution and contract action: “In approximately mid-July 2009, after several contentious and threatening emails from [Mr.] Chodos to [Mr.] Cole and [Mr.] Johnson, including a threat to ‘dismiss’ the contract [litigation, defendant] decided to accept a settlement negotiated on her behalf by [Mr.] Chodos to resolve the [contract and marital dissolution litigation]. Upon signing the comprehensive settlement agreement, ... an attorney fee dispute arose between [defendant] and [Mr.] Chodos with respect to legal services performed in the [contract and marital dissolution litigation], particularly because [Mr.] Chodos still had not entered into any written fee agreement with [defendant].”
Mr. Cole continued: “[T]hroughout my dealings with [defendant] and [Mr.] Chodos, I only independently advised [defendant] regarding the actions that [Mr.] Chodos was taking with respect to the [contract and marital dissolution litigation] and I facilitated communication between [defendant] and [Mr.] Chodos. At no time did I ever communicate with any opposing counsel in the [contract and marital dissolution litigation] as [Mr.] Chodos specifically insisted that I refrain from doing so. Additionally, I never appeared in court for [defendant] along side of [Mr.] Chodos, nor did I ever assist [Mr.] Chodos in the drafting of any pleadings, correspondence and/or agreements related to the [contract and marital dissolution litigation]. My role was very limited— simply to provide independent consultation and advice to [defendant] about her concerns regarding her relationship with [Mr.] Chodos on pending litigation.”
In addition, prior to filing plaintiffs’ equitable indemnity cross-complaint, Mr. Chodos attempted to disqualify Mr. Dempsey and Mr. Johnson, who represented the defendant in this lawsuit. Mr. Chodos indicated that Mr. Dempsey and Mr. Johnson were about to be sued on an equitable indemnity theory. According to Mr. Cole, the trial court expressly warned Mr. Chodos in its tentative ruling that equitable indemnity claims were improper under such circumstances.
[7152]. Mr. Johnson’s declaration
Mr. Johnson declared that in May 2009, the defendant retained him to evaluate plaintiffs’ work. Mr. Johnson declared: “I agreed to advise [defendant] about her options in the cases in the face of her lawyers’ failure to adequately litigate her claims, prepare the cases for trial or otherwise protect her interests. [][]... During the next six months, I met frequently with [defendant], reviewed the case dockets and documents she provided, and met several times with plaintiffs. [][]... During this time, I did not participate in the divorce cases; in fact, [Mr. Chodos] barred me from contacting any other counsel in the cases regarding any matter, including ongoing settlement discussions. [][] . . . Ultimately, I concluded that my firm could not take over the divorce cases because (i) [plaintiffs] had failed to prosecute discovery, retain experts and prepare for trial, and these failures could not be remedied given the proximity to trial, and (ii) I concluded [plaintiffs] could not possibly succeed at trial since they were so utterly unprepared and therefore unable to prove the case. [][]... [Mr. Chodos] himself admitted he-could not prove her case, pointing the finger at his client for creating a ‘strained relationship,’ and pushed her to accept her estranged husband’s settlement offer (from his position of absolute strength) or he would unilaterally dismiss her cases. [][]... Consequently, I advised [defendant] to take what she could through settlement and sue [plaintiffs] for malpractice, rather than have [Mr. Chodos] dismiss her claims and risk pursuing [Mr. Chodos], who is uninsured, for all her claims.” On September 14, 2009, the defendant executed the final settlement agreement under what Mr. Johnson characterized as “duress.”
Mr. Chodos stated he would not enforce the defendant’s right to $1.63 million immediately due her under the settlement agreement unless the funds were deposited into his trust account. According to Mr. Johnson, “He specifically acknowledged that his demand that funds go into his trust account was not required by the agreement but stated that he did ‘not trust [defendant].’ [][]... When I insisted [Mr. Chodos] needed to enforce the agreement on behalf of his client only as written, [Mr. Chodos] refused and ordered me and my client to ‘get the f***’ out of his office.”
On October 26, 2009, the defendant discharged Mr. Chodos. Mr. Johnson sent a substitution of attorney form to Mr. Chodos. When the substitution of attorney form was not returned, Mr. Johnson gave ex parte notice of his intention to seek a court order to relieve plaintiffs as the defendant’s counsel. On November 5, 2009, Mr. Gibson sent Mr. Johnson the defendant’s client files. At first, Mr. Chodos refused to provide the defendant’s client files to Mr. Johnson. Mr. Chodos only provided the defendant’s files when Mr. Johnson gave ex parte notice on December 16, 2009, of an intention to seek an order requiring that they be turned over. After Mr. Johnson substituted into the case, the defendant executed the stipulated judgment on [716]November 14, 2009, and Mr. Borman did so on December 3, 2009. Judgment was entered in the marital dissolution case on December 18, 2009. Mr. Johnson declared that had he known he would be sued over his representation of the defendant, it would have chilled the ability of his law firm to protect her rights.
3. Mr. Dempsey’s declaration
Mr. Dempsey declared that he was preparing the defendant’s legal malpractice case for trial against plaintiffs. Mr. Dempsey stated: “I was not directly involved in the evaluation of the divorce cases performed by my partner, Mr. Johnson, but did sit in on a few client meetings and received cc’s on a few e-mails from Mr. Johnson regarding work with [defendant], [][]... Faced with [Mr. Chodos’s] equitable indemnity claim for malpractice, however, I believe that it will be impossible for my firm to defend against the claim without revealing substantial confidential attorney-client communications. Those communications occurred between about May . . . and December 2009 while Mr. Johnson was evaluating the work of [Mr. Chodos] and [Mr. Gibson], and advising [defendant] on key strategies and the recommended malpractice claim. [][]... If our firm had thought during the time that [Mr.] Johnson was advising [defendant] about the divorce cases that Mr. Chodos might be able to drag us into protracted litigation about whether we had to pay any part of the damage caused by his malpractice, it would have chilled our ability to fully advise our client. We could not have given her the unfettered advice we did give her. If we have to defend Mr. Chodos’s lawsuit asking we indemnify him for his malpractice or pay part of the damage, we will be forced to disclose attorney-client communications or forego a key part of our defense.”
D. The Judicial Notice Request of Mr. Johnson, Mr. Dempsey and Their Law Firm
Mr. Johnson, Mr. Dempsey and their law firm filed a judicial notice request in connection with the special motions to strike. Many of the documents, although relevant to the motions, are unrelated to the issues pertinent to this appeal. However, several of the documents warrant discussion.
On June 14, 2010, plaintiffs filed a motion to disqualify Mr. Dempsey and his law firm from the present case. This was prior to the filing of the defendant’s July 9, 2010 legal malpractice cross-complaint. Attached to the disqualification motion was Mr. Chodos’s declaration. In that declaration, he states: “On May 7, 2010, [Mr.] Dempsey wrote me a second letter saying that [717]if and when the demurrer was overruled, he planned to file an answer on behalf of defendant . . . , together with a cross-complaint against [Mr.] Gibson and me for legal malpractice. ... [f] ... I immediately replied to Mr. Dempsey that a complaint for malpractice would constitute a malicious prosecution, and also assuring him that if such a cross-complaint were file[d], I would be require[d] to . . . cross-complain against him and his firm and Mr. Johnson, as well as [Mr.] Cole and [Mr.] Wolfe.”
A copy of Mr. Chodos’s May 10, 2010 letter threatening to file the equitable indemnity cross-complaint is attached to his declaration. In addition, Mr. Chodos’s letter contains the following threat: “[I]t will constitute a malicious prosecution. We will resist the claim, and if, as we anticipate, it is terminated finally in our favor, we can assure you that we will sue [defendant], and any lawyer or law firm that prosecutes a malpractice claim against us on her behalf, for very substantial compensatory and punitive damages for malicious prosecution.”
Also attached to the disqualification motion is a partial transcript of a June 10, 2010 deposition of the defendant. During the deposition, Mr. Dempsey interposed an objection on speculation and conclusion grounds relating to the value of some art. Mr. Dempsey instructed the defendant not to answer the question. In response, Mr. Chodos said: “We’ll suspend the deposition, and we’ll take it up with the Court. ... I want to give you notice now on the record and we plan to go to court on Monday with a motion to disqualify your firm and an ex part[e] application to shorten time for hearing on the motion.” When Mr. Dempsey asked what the motion would involve, Mr. Chodos responded: “The motion will be to disqualify the firm of Dempsey & Johnson and you and Mr. Johnson on the ground that Mr. Johnson will be a witness and apparently you will be a witness, and on the further ground that you plan to file a cross-complaint for malpractice, and we will have to file a . . . cross-complaint for malpractice, and you will therefore be parties and disqualified from representing.” As noted, in denying plaintiffs’ disqualification motion on June 21, 2010, the trial court warned Mr. Chodos about the problems of pursuing any legal malpractice indemnity claims against successor counsel.
IV. MR. CHODOS’S OPPOSITION TO THE SPECIAL MOTIONS TO STRIKE THE EQUITABLE INDEMNITY CROSS-COMPLAINT
On November 15, 2010, Mr. Chodos filed his opposition to the special motions to strike. Mr. Chodos contended the claims in the equitable indemnity cross-complaint did not arise from conduct specified in section 425.16, [718]subdivision (e). He also argued that even if the claims arose from conduct enumerated in section 425.16, subdivision (e), he had demonstrated a probability of prevailing during a trial.
The opposition was supported by Mr. Chodos’s declaration. Mr. Chodos cited to Mr. Wolfe’s deposition testimony: “During Mr. Wolfe’s deposition, he explained that he [had] been retained only in September 2009, and had participated in the underlying proceedings for only about five days. He was only asked to review, and only did review, the tax aspects of a proposed settlement between defendant. . . and her husband. He was not called upon to review, and did not review or approve, the non-tax-related substantive provisions of the proposed settlement. In light of that testimony, which I have no reason to doubt, I do not believe he would be an appropriate . . . cross-defendant with respect to any claim against me and [Mr.] Gibson for legal malpractice. However, Mr. Wolfe did say that he believed there was no malpractice, and that Mr. Gibson and I had achieved a ‘home run’ for defendant. . . .”
In addition, Mr. Cole admitted at his deposition that he had been asked by the defendant to “ghost write” a letter for her. The letter was to be sent to Mr. Chodos expressing her various concerns. Although the letter was drafted, it was never sent. In addition, Mr. Cole admitted that he acted as independent counsel for the defendant. Mr. Cole admitted attending meetings with the defendant and plaintiffs. Also present at later meetings were Mr. Johnson and Mr. Wolfe to discuss various aspects of the underlying settlements. Further, Mr. Cole admitted recommending to the defendant that she accept the final proposed settlement. In addition, Mr. Cole testified that he did not believe that plaintiffs had committed any legal malpractice.
Additionally, based upon attached deposition transcripts, Mr. Chodos declared that Mr. Johnson was first consulted by the defendant around May 2009. From that date forward, until the case settled, Mr. Johnson participated in a number of meetings concerning the settlement of the litigation between the defendant and Mr. Borman. Mr. Chodos declared: “The settlement agreement provided that it would be incorporated in a stipulated judgment to be submitted to the Court in the marital dissolution proceeding. After that document was prepared, and before it was filed, defendant. . . objected to a provision that the husband’s first payment would be made to me and be placed in my trust account. She insisted that the payment be made directly to her, expressing the idea that if the payment came to me, I would take it for [719]myself and [Mr.] Gibson, and not deliver it to her. [Mr.] Johnson echoed this idea.” Mr. Chodos admitted after further discussion that he became very angry and demanded that Mr. Johnson leave plaintiffs’ offices.
V. THE SPECIAL MOTIONS TO STRIKE PLAINTIFFS’ EQUITABLE INDEMNITY CROSS-COMPLAINT WERE PROPERLY GRANTED
A. Plaintiffs’ Equitable Indemnity Claims Arise from Litigation Conduct Subject to a Special Motion to Strike
The trial court correctly granted the special motions to strike plaintiffs’ equitable indemnity cross-complaint. At the outset, it is proper to identify the gravamen of plaintiffs’ equitable indemnity cross-complaint. (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 319 [86 Cal.Rptr.3d 288, 196 P.3d 1094]; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76 [124 Cal.Rptr.2d 519, 52 P.3d 695].) The “ ‘principal thrust or gravamen’ ” test is to be broadly interpreted. {Club Members for an Honest Election v. Sierra Club, supra, 45 Cal.4th at p. 319; see PrediWave Corp. v. Simpson Thacker & Bartlett LLP (2009) 179 Cal.App.4th 1204, 1220 [102 Cal.Rptr.3d 245] (hereafter PrediWave Corp.) The principal thrust of plaintiffs’ equitable indemnity cross-complaint is that the advice and negotiations engaged in by the defendant’s attorneys contributed to her legal malpractice damages. As noted, the operative paragraph of plaintiffs’ equitable indemnity cross-complaint states: “[Mr. Chodos] maintains . . . that [defendant’s] cross-complaint for legal malpractice is without merit, and without any foundation in fact or law. However, if and to the extent, if any, that defendant ... is able to establish that the settlement she obtained and accepted was the product or result of legal malpractice, said malpractice [would] have been committed, not by [plaintiffs], but rather by one or more of the cross-defendants [Mr.] Cole, [Mr.] Johnson, [Mr.] Dempsey and Dempsey & Johnson, by each of whom it was independently reviewed and approved, and each of whom concurred in the propriety of said settlement and its benefit to defendant, and advised her to accept it, and on whose advice she relied in deciding to accept it.” The cause of plaintiffs’ damages, as they allege it, are written and oral statements of Mr. Johnson, Mr. Dempsey, the firm of Dempsey & Johnson PC and Mr. Cole. Thus, the gravamen of plaintiffs’ claims, the injury-causing conduct, are the written and oral statements. (Scott v. [720]Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 416 [9 Cal.Rptr.3d 242]; Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 187 [6 Cal.Rptr.3d 494].)
Section 425.16 can apply when suit is based on written or oral statements made by an attorney in connection with an issue under consideration in a court, as occurred here. (§ 425.16, subd. (e)(2) [“any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law”].) Section 425.16, subdivision (e)(2) applies to statements made by attorneys representing clients in the settlement process. (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 964—967 [106 Cal.Rptr.3d 290] [attorney negotiating a secret settlement]; Genelhera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 908 [90 Cal.Rptr.3d 218] [communication by an attorney in connection with settlement of a lawsuit “directly implicates the right to petition” and is subject to special motion to a strike]; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1420 [103 Cal.Rptr.2d 174] [all of the four causes of action arose from the defendant’s acts of negotiating a stipulated settlement].) Section 425.16 may apply to written or oral statements made between private parties. (Navellier v. Sletten (2002) 29 Cal.4th 82, 91 [124 Cal.Rptr.2d 530, 52 P.3d 703]; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116 [81 Cal.Rptr.2d 471, 969 P.2d 564].)
Mr. Chodos argues though that the special motion to strike remedy has no application to legal malpractice claims. Mr. Chodos relies on Court of Appeal decisions which hold that section 425.16 does not apply to legal malpractice claims brought by an attorney’s former client. Each of these decisions involves a client suing his or her former attorney for forms of professional negligence. (PrediWave Corp., supra, 179 Cal.App.4th at pp. 1221-1228 [conflict of interest claims by former client]; Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566, 572-582 [104 Cal.Rptr.3d 628] [errors by former counsel]; Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1535, 1539-1540 [52 Cal.Rptr.3d 712] [“ ‘garden variety legal malpractice action’ ” pursued by former clients not subject to § 425.16]; Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179, 1181, 1189 [20 Cal.Rptr.3d 621] [§ 425.16 does not apply to breach of loyalty claim]; Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 628, 630-631 [7 Cal.Rptr.3d 715] [client’s suit based on terminating sanction issued after former lawyer’s failure to obey court orders to produce documents].) Each of these cases involves professional negligence claims brought by a client against a former lawyer.
[721]The rationale for these cases was explained by our Sixth Appellate District colleagues thus: “ ‘A malpractice claim focusing on an attorney’s incompetent handling of a previous lawsuit does not have the chilling effect on advocacy found in malicious prosecution, libel, and other claims typically covered by the anti-SLAPP statute. In a malpractice suit, the client is not suing because the attorney petitioned on his or her behalf, but because the attorney did not competently represent the client’s interests while doing so. Instead of chilling the petitioning activity, the threat of malpractice encourages the attorney to petition competently and zealously.’ ” (PrediWave Corp., supra, 179 Cal.App.4th at p. 1222, quoting Kolar v. Donahue, McIntosh & Hammerton, supra, 145 Cal.App.4th at p. 1540; accord, Robles v. Chalilpoyil, supra, 181 Cal.App.4th at pp. 577-578.) But these latter three legal malpractice/special motion to strike cases draw a crucial distinction. They all hold that the special motion to strike remedy may be available when suit is filed against a third party attorney as occurred here. Robles, PrediWave Corp. and Kolar draw this distinction, “ ‘This is vastly different from a third party suing an attorney for petitioning activity, which clearly could have a chilling effect.’ ” (PrediWave Corp., supra, 179 Cal.App.4th at p. 1222, quoting Kolar v. Donahue, McIntosh & Hammerton, supra, 145 Cal.App.4th at p. 1540; accord, Robles v. Chalilpoyil, supra, 181 Cal.App.4th at p. 578.)
The distinction between client malpractice cases and other scenarios was spelled out in Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 158 [143 Cal.Rptr.3d 17]: “[I]if the plaintiff is a nonclient who alleges causes of action against someone else’s lawyer based on that lawyer’s representation of other parties, the anti-SLAPP statute is applicable to bar such nonmeritorious claims. The discussion in PrediWave is illustrative: ‘In determining the applicability of [section 425.16], we think a distinction must be drawn between (1) clients’ causes of action against attorneys based upon the attorneys’ acts on behalf of those clients, (2) clients’ causes of action against attorneys based upon statements or conduct solely on behalf of different clients, and (3) nonclients’ causes of action against attorneys. In the first class, the alleged speech and petitioning activity was carried out by attorneys on behalf of the plaintiffs in the lawsuits now being attacked as SLAPP’s, although the attorneys may have allegedly acted incompetently or in violation of the Professional Rules of Conduct.’ (PrediWave, supra, 179 Cal.App.4th at p. 1227.) [f] In other words, only the ‘first class’ of claims— those brought by former clients against their former attorneys based on the attorneys’ acts on behalf of those clients—may not be within the ambit of [section 425.16]. The other kinds of actions—‘(2) clients’ causes of action against attorneys based upon statements or conduct solely on behalf of different clients, and (3) nonclients’ causes of action against attorneys’—are. (PrediWave, supra, at p. 1227.)” The third scenario, of course, is the situation [722]here. Hence, the legal malpractice cases relied upon by Mr. Chodos are inapplicable.
B. Mr. Chodos Has Not Shown His Claims Have Minimal Merit
Mr. Chodos has not shown his claims have the requisite minimal merit. (§ 425.16, subd. (b)(2); Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 [124 Cal.Rptr.3d 256, 250 P.3d 1115].) First, all of Mr. Chodos’s claims are barred by the litigation privilege. (Civ. Code, § 47, subd. (b); Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241 [63 Cal.Rptr.3d 398, 163 P.3d 89].) Second, Mr. Chodos may not sue Mr. Dempsey, Mr. Johnson and their firm, who presently represent the defendant, for equitable indemnity in response to her legal malpractice cross-complaint. (Shaffery v. Wilson, Elser, Moskowitz, Edelman & Dicker (2000) 82 Cal.App.4th 768, 769-770 [98 Cal.Rptr.2d 419]; Gibson, Dunn & Crutcher v. Superior Court (1979) 94 Cal.App.3d 347, 355 [156 Cal.Rptr. 326].)
VI. THE TWO ATTORNEY FEE AWARDS
First, section 425.16, subdivision (c)(1) attorney fee awards are reviewed for an abuse of discretion. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140 [104 Cal.Rptr.2d 377, 17 P.3d 735]; Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1388 [34 Cal.Rptr.3d 368].) Without a reporter’s transcript, it is impossible to assess whether an abuse of discretion occurred. (Vo v. Las Virgenes Municipal Water Dist., supra, 79 Cal.App.4th at p. 447; see Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186-187 [129 Cal.Rptr.3d 421].)
Second, as to Mr. Johnson, Mr. Dempsey and their law firm, Mr. Chodos’s premature appeal from the attorney fee award must be dismissed as it relates to the amount of fees. Mr. Chodos filed his notice of appeal on October 3, 2011. This was before the trial court calculated the amount of fees payable to Mr. Johnson, Mr. Dempsey and their law firm. The attorney fee award in favor of Mr. Johnson, Mr. Dempsey and their law firm was not entered until October 28, 2011. Based upon the written documents in the appellants’ appendix, the hearing was held on October 28, 2011. Thus, Mr. Chodos’s premature appeal, made prior to the calculation of the amount of attorney fees, must be dismissed insofar as it relates to the fee amount. (Silver v. Pacific [723]American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 691 [118 Cal.Rptr.3d 581]; First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960-961 [134 Cal.Rptr.2d 206].)
A petition for a rehearing was denied November 14, 2012, and on November 7, 2012, the opinion was modified to read as printed above. Respondents’ petitions for review by the Supreme Court were denied February 13, 2013, S207106.
At oral argument, Mr. Chodos, in response to questioning from the bench stated: “On the question of the reporter’s transcript, obviously I’m not trying to save a hundred dollars three hundred dollars for the transcripts. I did not include them and did not obtain them because I was satisfied nothing was said at the hearings had any bearing on the issue of this appeal. Now when the issue came up, I did not understand that I would be able to provide a reporter’s transcript belatedly, and therefore I did not do so. But I will remind Your Honor that there has never been a single suggestion anywhere either from the respondents or from the court that there is anything in these reporter’s transcripts that would be significant for the court and so I thought that we had resolved the matter . . . .”
Future statutory references are to the Code of Civil Procedure, unless otherwise specified.