November 2012 Vol. 9, No. 3


Anti-SLAPP, CCP § 425.16 – Attorney Activity Covered By


Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141


Was non-client’s lawsuit against attorneys, who handled her husband’s settlement of a putative class action claim to which non-client husband’s was a party and which involved a dispute over resort memberships, for allegedly mishandling the settlement proceeds subject to a motion to strike under the anti-SLAPP statute?


Yes.  The Court first found that plaintiff’s claims arose from the attorneys’ conduct on behalf of their clients in the underlying litigation and thus fell within the anti-SLAPP statute, which “protects lawyers sued for litigation-related speech and activity.”  (207 Cal.App.4th at 154, citations omitted.)  “[L]egal advice and settlement made in connection with litigation are within section 425.16, and may protect defendant attorneys from suits brought by third parties on any legal theory or cause of action ‘arising from’ those protected activities.”  (Ibid., citations omitted.)

The Court rejected plaintiff’s argument that her lawsuit was outside of the anti-SLAPP statute since it concerned breach of a settlement agreement and one party to a settlement agreement may sue another party to the agreement for breach.  While that is true, this case alleged breach of plaintiff’s husband’s agreement with defendant law firm to handle the litigation, not breach of the settlement agreement in the underlying action.  (Id. at 157.)

The Court also rejected plaintiff’s argument that her lawsuit fell outside of the anti-SLAPP statute because it was based on the defendant attorneys’ breaches of their fiduciary duty and on fraud.  “[I]f the plaintiff is a nonclient who alleges causes of action against someone else’s lawyer based on the lawyer’s representation of other parties, the anti-SLAPP statute is applicable to bar such nonmeritorious claims.”  (Id. at 158.)

Turning to the second step in the anti-SLAPP statute analysis, the Court concluded that plaintiff had failed to demonstrate a likelihood of prevailing on the merits.  Plaintiff could not and did not show that she was a third-party beneficiary of the contract her husband had with the defendant attorneys or that she was an owner of the settlement funds disbursed to her husband in the underlying litigation.  “An attorney who undertakes to represent one spouse does not become the legal representative of the client’s wife or husband:  A community property or marital interest in the spouse’s recovery does not create either an attorney-client relationship or a duty to the non-client spouse.”  (Id. at 160, internal marks and citation omitted.)

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