Filed 11/18/21 Urick v. Elkins Kalt Weintraub Reuben Gartside CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
DANA URICK et al., B310056
Plaintiffs and (Los Angeles County
Respondents, Super. Ct. No.
20STCV17462)
v.
ELKINS KALT WEINTRAUB
REUBEN GARTSIDE, LLP et
al.,
Defendants and
Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, David J. Cowan, Judge. Affirmed.
Elkins Kalt Weintraub Reuben Gartside, Jeffrey K. Riffer,
and Julie Z. Kimball for Defendants and Appellants.
Bohm Wildish & Matsen, James G. Bohm; Ulwelling Law
and Lauren E. Saint for Plaintiffs and Respondents.
******
A woman and her son sued the lawyers who represented
her in probate litigation for legal malpractice and related claims
due to an alleged conflict of interest and allegedly bad advice.
The trial court denied the lawyers’ motion to dismiss the entire
lawsuit under our anti-SLAPP law (Code Civ. Proc., § 425.16),1
because their alleged misconduct did not constitute activity
protected by the anti-SLAPP law. This was correct, so we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In 2013, Allyne L. Urick created the Allyne L. Urick Trust
(the Trust), a primary asset of which was a three-story apartment
building held as part of a joint venture. Upon Allyne’s death, the
Trust provided for a lifetime annuity to three people with the
remainder going to her deceased husband’s alma mater; the three
people were (1) her daughter, Dana Urick (Dana), (2) her son,
Willis E. Urick III (Willis), and (3) her grandchild (and Dana’s
son), Trentyn Urick-Stasa (Trentyn).2
1 “SLAPP” is short for strategic lawsuit against public
participation.
All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2 Because many of these individuals share the same last
name, we use first names for clarity. We mean no disrespect.
2
When Allyne died in August 2015, Dana became the Trust’s
trustee. As trustee, Dana (1) filed a February 2016 petition to
reform the Trust to eliminate the bequests to Willis and the
school and instead to split the Trust’s $14 million corpus between
herself and her son Trentyn, and (2) in March 2017, triggered—
but did not consummate—the procedures to buy-out the interests
of Lucien Seifert (Seifert), the other joint venturer in the
apartment building.
These actions had consequences. In response to her
petition for reformation, Willis in May 2016 and thereafter filed
various petitions to disinherit Dana and her son under the
Trust’s “no contest” clause and to have Dana removed as trustee.
In response to the invoked but aborted buy-out, Seifert sued
Dana in November 2017 and Dana cross-complained against
Seifert in December 2017.
In her role as trustee of the Trust, Dana retained the law
firm Elkins Kalt Weintraub Reuben Gartside, LLP and two of its
lawyers (collectively, defendants) in November or December 2017
to “provide [her] guidance” and “legal representation” “in matters
related to trust administration and in litigation concerning the
Trust.” During this period, Dana simultaneously employed
separate counsel to aid her in the ongoing litigation, as her cross-
complaint against Seifert filed in December 2017 and an
amended petition for reformation she filed in May 2018 were
each filed by counsel other than defendants.
In January 2020, the probate court removed Dana as
trustee of the Trust and appointed successor cotrustees after
concluding that (1) her pursuit of the reformation petition, which
was to her personal advantage, constituted a conflict of interest,
and (2) her position in the Seifert litigation might “cause major
3
tax problems for the Trust” that would harm the Trust’s other
beneficiaries.
II. Procedural Background
A. Complaint
On May 7, 2020, Dana (in her individual capacity rather
than as trustee for the trust) and Trentyn (with Dana serving as
his guardian ad litem) (collectively, plaintiffs) sued defendants
for (1) legal malpractice, (2) breach of contract due to failure to
provide adequate legal representation, and (3) interfering with a
prospective economic advantage because their inadequate legal
representation caused plaintiffs to “los[e]” out on the “financial
benefits” flowing from Dana’s role as trustee and, possibly, both
plaintiffs’ status as beneficiaries.3
Although plaintiffs’ complaint makes general allegations
that defendants “negligently and carelessly provided legal
services and advice . . . which included . . . their filing of
pleadings and other documents,” plaintiffs go on to allege the
following “specific breaches” of defendants’ duty to provide
adequate legal representation: (1) defendants did not disclose
that another lawyer at the firm was representing Seifert in the
ongoing litigation between Seifert and the Trust, which required
Dana to scramble to find new counsel in the Seifert litigation
when Seifert attempted to disqualify defendants, and (2)
defendants gave her bad “advice” to continue pursuing her
previously filed reformation petition, which may result in her (a)
personally paying a surcharge for the Trust’s expenditures
paying defendants’ fees, and (b) being excluded from the Trust
under its no contest clause.
3 Dana has brought malpractice actions against four other
law firms that had represented her in the Trust proceedings.
4
B. Anti-SLAPP motion
Defendants filed a special motion to strike plaintiffs’ entire
complaint under the anti-SLAPP law, arguing that (1) plaintiffs’
claims fall within the ambit of the law because they “rest entirely
on” defendants’ “litigation-related conduct,” and (2) plaintiffs’
claims must be dismissed (and hence lack minimal merit)
because defendants cannot defend themselves unless the
successor cotrustees waive the attorney-client privilege running
between the Trust and its lawyers.
After further briefing and two hearings, the trial court
issued a written ruling denying the anti-SLAPP motion.4 The
court reasoned that plaintiffs’ claims did not “arise from” activity
protected by the anti-SLAPP law because “the primary thrust of
[plaintiffs’] claims is that [d]efendants breached their
professional and ethical duties . . . by engaging in conflicted
representation in the Seifert action and providing damaging and
negligent legal advice in the Urick trust action,” neither of which
was based on any “litigation activities.” In light of this holding,
the court declined to issue a definitive ruling on whether
plaintiffs’ claims had minimal merit.
C. Appeal
Defendants filed this timely appeal.
DISCUSSION
Defendants argue that the trial court erred in denying the
special motion to strike under the anti-SLAPP statute. Because
4 In the midst of briefing on the anti-SLAPP motion,
plaintiffs filed a first amended complaint. The trial court
concluded that the filing of an amended complaint did not moot
the anti-SLAPP motion to the original, superseded complaint,
and defendants do not challenge that ruling on appeal.
5
we independently review a trial court’s anti-SLAPP analysis
(Park v. Board of Trustees of California State University (2017) 2
Cal.5th 1057, 1067 (Park)), we are not bound by its rationale.
I. Governing Law
A. Anti-SLAPP law, generally
Section 425.16 was created “to provide a procedural remedy
to dispose of lawsuits that are brought to chill the valid exercise
of constitutional rights.” (PrediWave Corp. v. Simpson Thacher &
Bartlett LLP (2009) 179 Cal.App.4th 1204, 1217 (PrediWave);
§ 425.16, subd. (a).) To effectuate this purpose, the trial court is
empowered to strike a claim if it answers “yes” to the first
question and “no” to the second question: “(1) has the moving
party ‘made a threshold showing that the challenged cause of
action arises from protected activity’ [citation], and, if so, (2) has
the nonmoving party ‘established . . . a probability that [they] will
prevail’ on the challenged cause of action by showing that the
claim has ‘minimal merit’ [citations]?” (Abir Cohen Treyzon Salo,
LLP v. Lahiji (2019) 40 Cal.App.5th 882, 887.) The first
question—that is, whether a cause of action arises from protected
activity—“turns on two subsidiary questions: (1) What conduct
does the challenged cause of action ‘arise[] from’; and (2) is that
conduct ‘protected activity’ under the anti-SLAPP statute?”
(Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15
Cal.App.5th 686, 698 (Mission Beverage).)
“A cause of action ‘arises from’ protected activity when ‘the
cause of action itself’ is ‘based on’ protected activity. [Citations.]
Whether a cause of action is itself based on protected activity
turns on whether its ““‘principal thrust or gravamen’”” is
protected activity—that is, whether the “‘core injury-producing
conduct’” warranting relief under that cause of action is protected
6
activity.” (Mission Beverage, supra, 15 Cal.App.5th at p. 698,
quoting City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78,
Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th
1106, 1114 (Briggs), Colyear v. Rolling Hills Community Assn. of
Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 134; see also
Park, supra, 2 Cal.5th at p. 1060 [conduct constituting protected
activity must “itself [be] the wrong complained of”]; see also
Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1012
(Bonni) [affirming “gravamen test” “to determine whether
particular acts alleged within the cause of action supply the
elements of a claim . . . or instead are incidental background”].)
What conduct is “protected under the anti-SLAPP statute”
turns “not [on] First Amendment law, but [rather on] the
statutory definitions in . . . section 425.16, subdivision (e).” (City
of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422.) As pertinent
here, subdivision (e) of section 425.16 defines protected activity to
include “any written or oral statement or writing made before a
. . . judicial proceeding” or “in connection with an issue under
consideration or review by a . . . judicial body.” (§ 425.16, subd.
(e)(1) & (2); Briggs, supra, 19 Cal.4th at p. 1115 [““‘basic act of
filing litigation or otherwise seeking administrative action’””;
protected]; Pettitt v. Levy (1972) 28 Cal.App.3d 484, 490
[statements made during witness preparatory interviews;
protected].) In assessing whether a cause of action arises from
protected activity, a trial court must consider “the pleadings” as
well as the “supporting and opposing affidavits stating the facts
upon which the liability or [a] defense is based.” (§ 425.16, subd.
(b)(2).) However, the pleadings are of primary importance
because the plaintiff is the architect of her own complaint, such
that the core injury-producing conduct at issue in a case is
7
primarily a function of “what is pled—not what is proven.” (Bel
Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 936-937;
Comstock v. Aber (2012) 212 Cal.App.4th 931, 942.)
B. Anti-SLAPP law, as applied to legal malpractice
claims
Claims for, or resting upon, allegations of legal malpractice
often arise in the context of litigation before judicial bodies.
However, such a claim does not qualify as “protected activity”
under the anti-SLAPP law merely because the plaintiff chooses to
label the claim as one for legal malpractice (Bergstein v. Stroock
& Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 811
(Bergstein)), because the claim is “related to or associated with
. . . litigation activities” (Freeman v. Schack (2007) 154
Cal.App.4th 719, 729 (Freeman); Jespersen v. Zubiate-Beauchamp
(2003) 114 Cal.App.4th 624, 630 (Jespersen)), or because “some
. . . allegations [supporting that claim] refer to the attorney’s
actions in court” (Hylton v. Frank E. Rogozienski, Inc. (2009) 177
Cal.App.4th 1264, 1275 (Hylton)). Instead, a malpractice claim
qualifies as “protected activity” only when the “specific acts of
wrongdoing” alleged as the basis for the legal malpractice claim
are the attorney’s written and oral statements to a judicial body
(§ 425.16, subd. (e)(1)) or the attorney’s “communicative acts”
made “as part of [his or her] representation of [the] client”
(Cabral v. Martins (2009) 177 Cal.App.4th 471, 480 (Cabral)).
Consequently, where a legal malpractice claim is based
upon an attorney’s initiation or prosecution of legal proceedings
(as it necessarily is in a claim for abuse of process or malicious
prosecution), that claim is based upon protected activity and the
anti-SLAPP law applies. (Jarrow Formulas, Inc. v. LaMarche
(2003) 31 Cal.4th 728, 735 [malicious prosecution claim based
8
upon prosecution of prior lawsuit]; Area 55, LLC v. Nicholas &
Tomasevic (2021) 61 Cal.App.5th 136, 151 [same]; Summerfield v.
Randolph (2011) 201 Cal.App.4th 127, 136 [same]; Rusheen v.
Cohen (2006) 37 Cal.4th 1048, 1056 [abuse of process claim based
on filings]; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 907-
908 [filing lawsuit]; Cabral, supra, 177 Cal.App.4th at p. 479
[same]; Bergstein, supra, 236 Cal.App.4th at pp. 811-813 [use of
confidential information to prosecute lawsuit]; Finato v. Keith A.
Fink & Associates (2021) 68 Cal.App.5th 136, 229, 233 [breach of
contract based on law firm’s attorney fees lien on settlement
reached by former client after law firm stopped representing
former client].) The same is true when the claim is based upon
the attorney’s statements made in preparation for, or
contemplation of, filing a lawsuit (Briggs, supra, 19 Cal.4th at p.
1115; Mindy’s Cosmetics, Inc. v. Dakar (9th Cir. 2010) 611 F.3d
590, 597-598 [filing trademark application]), based upon the
attorney’s statements to the judicial body or opposing counsel in
the response to litigation (Contreras v. Dowling (2016) 5
Cal.App.5th 394, 409; Fremont Reorganizing Corp. v. Faigin
(2011) 198 Cal.App.4th 1153, 1166-1167; Peregrine Funding, Inc.
v. Sheppard Mullin Richter & Hampton (2005) 133 Cal.App.4th
658, 671 (Peregrine Funding)), or based upon the attorney’s
statements to the opposing side during settlement negotiations
(Navellier v. Sletten (2002) 29 Cal.4th 82, 89-90 (Navellier);
GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171
Cal.App.4th 901, 907-908; O&C Creditor Group, LLC v. Stephens
& Stephens XII, LLC (2019) 42 Cal.App.5th 546, 568; Optional
Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18
Cal.App.5th 95, 113-114).
9
Conversely, where the “specific acts of [alleged]
wrongdoing” by an attorney—whether the resulting claim be
labeled as a claim for professional negligence, a breach of
contract, or a breach of fiduciary duty—do not involve protected
activity, the anti-SLAPP law does not apply. Thus, an attorney’s
representation of a client while laboring under a conflict of
interest in violation of his or her ethical duties does not, without
more, involve protected activity. (PrediWave, supra, 179
Cal.App.4th at pp. 1226-1227; Benasra v. Mitchell Silberberg &
Knupp LLP (2004) 123 Cal.App.4th 1179, 1189 (Benasra);
Loanvest I, LLC v. Utrecht (2015) 235 Cal.App.4th 496, 504-505
(Loanvest); Chodos v. Cole (2012) 210 Cal.App.4th 692, 702
(Chodos); Freeman, supra, 154 Cal.App.4th at pp. 729-730, 732
(Freeman); Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 493
(Castleman); Sprengel v. Zbylut (2015) 241 Cal.App.4th 140, 150-
151 (Sprengel).) An attorney’s dispensing of allegedly “bad” legal
advice also does not, without more, involve protected activity.
(Hylton, supra, 177 Cal.App.4th at pp. 1273-1274; Peregrine
Funding, supra, 133 Cal.App.4th at p. 670.) And an attorney’s
failure to comply with his or her statutory obligations in
litigation does not, without more, involve protected activity.
(Jespersen, supra, 114 Cal.App.4th at p. 632.)
II. Analysis
Applying this precedent, the trial court correctly
determined that plaintiffs’ claims did not arise from protected
activity. As noted above, the two “specific breaches” plaintiffs
identify—and which underlie all of their claims—are defendants’
alleged conduct in (1) representing Dana while the Seifert matter
was ongoing, which constituted a conflict of interest because
defendants were also representing her adversary in that matter,
10
and (2) giving her bad advice to continue pursuing her
reformation petition despite the risk that it might trigger the
Trust’s no-contest clause and have other consequences adverse to
plaintiffs’ interests. As explained above, legal malpractice claims
based on each of these breaches—working under a conflict of
interest and dispensing bad legal advice—are not protected
activity under the anti-SLAPP law because they fall outside the
definition of protected activity set forth in section 426.15,
subdivision (e)(2).5 (PrediWave, supra, 179 Cal.App.4th at pp.
1226-1227; Benasra, supra, 123 Cal.App.4th at p. 1189; Loanvest,
supra, 235 Cal.App.4th at pp. 504-505; Chodos, supra, 210
Cal.App.4th at p. 702; Freeman, supra, 154 Cal.App.4th at pp.
729-730, 732; Sprengel, supra, 241 Cal.App.4th at pp. 150-151;
Hylton, supra, 177 Cal.App.4th at pp. 1273-1274.)
Defendants respond with what boil down to three
arguments.
First, defendants urge us to reject the entire line of cases
holding that legal malpractice claims are sometimes not
protected activity. According to defendants, these cases must be
rejected because they have adopted a “categorical exception”
exempting all legal malpractice claims from the ambit of the anti-
SLAPP law in derogation of our Supreme Court’s holding in
Navellier, supra, 29 Cal.4th at p. 92, that “[n]othing in the [anti-
5 Defendants cite a handful of case involving conduct
qualifying as protected activity because it involves publication of
statements to the public at large under other portions of section
425.16, subdivision (e) (e.g., Roberts v. Los Angeles County Bar
Assn. (2003) 105 Cal.App.4th 604, 615; Shekhter v. Financial
Indemnity Co. (2001) 89 Cal.App.4th 141, 153), but none of
plaintiffs’ allegations deal with publication of speech in this
fashion.
11
SLAPP law] categorically excludes any particular type of action
from its operation.” This is a strawman argument. That is
because, contrary to what defendants strenuously assert, these
cases do not categorically exempt malpractice claims from the
anti-SLAPP law. To be sure, some of these cases include
overbroad language (e.g., Chodos, supra, 210 Cal.App.4th at p.
702 [“the anti-SLAPP statute does not apply to claims of attorney
malpractice”]; Sprengel, supra, 241 Cal.App.4th at p. 151
[malpractice claims are “generally not subject” to the anti-SLAPP
law]), but each case looks beyond the label of the claim at issue to
examine whether the specific conduct alleged qualifies as
protected activity. We have done the same here, and have
concluded that the specific conduct underlying plaintiffs’ claims is
not protected activity. The fact that the trial court referred to the
above-cited cases as creating a “limited exception” is of no
consequence because we are reviewing the trial court’s ruling, not
its rationale. (See People v. Zapien (1993) 4 Cal.4th 929, 976
[noting “firmly established” rule that appellate courts review the
trial court’s ruling, not its rationale].) We accordingly also reject
defendants’ related contention that Dana is barred by the
doctrine of judicial estoppel from urging us to adopt a categorical
exception because she argued against such an exception in a
different appeal.
Second, defendants assert that plaintiffs’ claims rest on
protected activity because (1) the complaint alleges that
defendants “negligently and carelessly provided legal services
and advice . . . which included . . . their filing of pleadings and
other documents,” and the act of filing documents with a court is
protected activity; and (2) plaintiff’s alleged injury was caused by
the probate court’s post-malpractice rulings removing Dana as
12
trustee and its potential future rulings disinheriting plaintiffs,
surcharging Dana’s interest in the Trust, and assessing Dana
attorney fees, those orders and potential future orders reflect
protected activity, and this protected activity is a necessary
element of plaintiffs’ claims because there can be no claim for
malpractice “until the client suffers appreciable harm as a
consequence of [the] attorney’s negligence” (Jordache Enterprises,
Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 749-
750). We reject these assertions. Defendants’ focus on the
general allegations in plaintiffs’ complaint regarding filings
ignores that the complaint goes on to identify the “specific
breaches” underlying their claims; it is those “specific breaches”
we have examined and have determined to fall outside the
definition of protected activity. (See Bonni, supra, 11 Cal.5th at
p. 1012 [distinguishing between conduct forming the “gravamen”
of a claim and conduct that is “incidental background”];
Jespersen, supra, 114 Cal.App.4th at p. 630 [rejecting similarly
“narrow construction of the complaint”].) The existence of errant
and unnecessary additional allegations does not alter our
analysis. And defendants’ injury-based argument is effectively a
covert plea to jettison the line of cases upon which we rely and
which recognize that legal malpractice often rests on
nonprotected activity; because clients who are the victims of legal
malpractice are typically injured by subsequent court rulings
tainted by that malpractice, to hold that those subsequent rulings
convert a malpractice claim into protected activity is to erect a
categorical rule that all malpractice claims involve protected
activity regardless of the conduct underlying them. (See Robles
v. Chalilpoyil (2010) 181 Cal.App.4th 566, 576 [anti-SLAPP
cannot be used to “insulate” all malpractice claims].) Further,
13
this argument ignores that the pertinent statutory definition of
protected activity turns on whether a litigant makes a statement
in connection with a pending judicial proceeding—not on whether
the court itself issues a ruling. (§ 425.16, subd. (e)(2).)
Third, defendants attack the merits of plaintiffs’ claims on
a number of grounds—namely, that defendants cannot be liable
for legal malpractice because (1) Dana (in her individual
capacity) and Trentyn were never their clients, (2) another law
firm handled the court filings for the Seifert matter and the
reformation proceedings, and (3) Dana herself is to blame for
taking defendants’ (allegedly bad) advice. We need not delve into
these arguments because these “merits based arguments have no
place in [the] threshold analysis of whether plaintiffs’ causes of
action arise from protected activity.” (Freeman, supra, 154
Cal.App.4th at p. 733; Sprengel, supra, 241 Cal.App.4th at p. 156
[whether there is an “attorney-client relationship” “improperly
conflate[s] the first and second prongs” of anti-SLAPP analysis].)
* * *
In light of our analysis, we have no occasion to reach the
second step of the anti-SLAPP analysis regarding whether
plaintiffs established that their claims have “minimal merit.”
14
DISPOSITION
The order is affirmed. Plaintiffs are entitled to their costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
15