Procedural Posture

Procedural Posture

Plaintiff attorney sued defendant, also an attorney, for fraud and intentional infliction of emotional distress. Defendant filed a special motion to strike plaintiff’s complaint pursuant to the anti-SLAPP (strategic lawsuit against public participation) statute, Code Civ. Proc., § 425.16, but the Marin County Superior Court, California, entered an order denying the motion. Defendant appealed.

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Plaintiff’s causes of action were based on allegations that defendant, on behalf of an insurer, secretly negotiated an agreement with a homeowners association in a prior case that resulted in dismissal of trespass claims from the association’s cross-complaint against plaintiff. Plaintiff contended that she was injured by the agreement because it resulted in the insurer’s refusal to pay defense expenses on the remainder of the cross-complaint, which the insurer asserted no longer involved a covered claim. The court concluded that plaintiff’s causes of action against defendant arose from speech or petitioning activity, as defendant’s alleged conduct was the negotiation of the settlement agreement with the homeowners association. Although plaintiff’s contentions raised questions about the propriety of how the settlement negotiations were conducted, defendant was not obligated to show his actions were constitutionally protected as a matter of law. Moreover, because defendant could not be held liable for his alleged conduct under the litigation privilege, Civ. Code, § 47, subd. (b), plaintiff failed to demonstrate a probability of prevailing on her causes of action.


The order denying defendant’s anti-SLAPP motion was reversed, and the matter was remanded to the trial court with instructions to vacate the order, enter a new order granting the motion, and conduct further proceedings.