Garcia Legal v. Molina CA2/7 ( 2023 )

Filed 3/13/23 Garcia Legal v. Molina CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
GARCIA LEGAL, B312235
Cross-complainant and (Los Angeles County
Respondent, Super. Ct. No.
19STCV05642)
v.
MONICA MOLINA,
Cross-defendant and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Yolanda Orozco, Judge. Affirmed.
Monica R. Molina, in. pro. per., for Cross-defendant and
Appellant.
Law Office of Dale E. Washington, Dale E. Washington;
Garcia Legal and Steven Ray Garcia for Cross-complainant and
Respondent.
____________________________
Monica R. Molina (Monica) and Garcia Legal, a
Professional Corporation, represented Esperanza Molina
(Esperanza), Monica’s mother, in a quiet title action that was
eventually settled. Garcia Legal sued Esperanza to recover
unpaid legal fees (just under $32,000). Esperanza filed a cross-
complaint against Garcia Legal, alleging it had breached the
parties’ retainer agreement and the fees already paid
(approximately $62,000) exceeded the value of the services
provided. Garcia Legal then cross-complained against Monica for
indemnity, contending, if any legal services performed by Garcia
Legal did not benefit Esperanza (which it denied), the work was
necessary to rectify the errors committed during the litigation by
Monica while representing their joint client.
Monica filed a special motion to strike Garcia Legal’s cross-
complaint pursuant to Code of Civil Procedure section 425.16
(section 425.16). The trial court denied the motion, ruling Garcia
Legal’s indemnity claim did not arise from protected petitioning
activity. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Original Real Property Lawsuit, Garcia Legal’s
Action To Recover Fees and the Two Cross-complaints
Esperanza, represented by Monica, filed a quiet title action
against 304 Crane, LLC in April 2017, alleging a right to an
easement burdening 304 Crane’s property, which adjoined
Esperanza’s, in the Mount Washington neighborhood of
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Los Angeles. Esperanza retained Garcia Legal and its principal
Steven Ray Garcia (who described himself on the firm’s website
as “the dirt lawyer”) in September 2017 to represent her, as
cocounsel with Monica, in the litigation. Esperanza discharged
Garcia Legal in mid-December 2018 while the parties were
discussing settlement. The lawsuit settled shortly thereafter.
Garcia Legal sued Esperanza on February 19, 2019 to
recover unpaid legal fees of $31,864.61, alleging causes of action
for breach of contract, open book account and declaratory relief.
Esperanza on May 26, 2020 filed a cross-complaint for breach of
contract and money had and received, alleging Garcia Legal
breached its written agreement with Esperanza in connection
with the 304 Crane litigation by misrepresenting Steven Garcia’s
experience and expertise; charging unconscionable fees; and
billing for excessive hours spent on tasks that should have taken
less time, work that was unnecessary and did not benefit
Esperanza, and work performed for other clients. Esperanza
further alleged that Garcia frequently absented himself without
notice to Esperanza or Monica; abandoned Esperanza for a
vacation two weeks before the scheduled trial date; and conveyed
settlement offers without prior authorization. The cross-
complaint alleged Esperanza had paid $68,286 in fees and costs
for Garcia Legal’s representation in the 304 Crane litigation, an
amount that exceeded by more than $10,000 both the actual
value of the services provided and “the amount which Garcia
Legal, following the terms of the aforesaid written agreement and
the California State Bar Rules of Professional Conduct, should
have billed [Esperanza].”
Garcia Legal on August 24, 2020 filed a cross-complaint
against Monica for indemnity. As quoted in the trial court’s
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ruling on Monica’s special motion to strike,1 Garcia Legal alleged,
“[T]o the extent Esperanza contends that [Garcia Legal] was
billing excessively or performing services that were unnecessary
or produced no discernable value to her, it was because [Garcia
Legal] was required to respond to conduct and other actions of
Monica and Does 11 through 20 that either fell below the
standard of care, were reckless, or were the sole or primary cause
of additional fees and costs incurred by Esperanza, as set forth
above. In undertaking work responsive to and curative of Monica
and Does 11 through 20’s conduct, or consequences caused or
contributed by her conduct [Garcia Legal] had no legal obligation
[to] undertake the work without being paid to do so. . . .
Therefore, to the extent that the court should find that [Garcia
Legal] bears any responsibility for any of the claims asserted in
Esperanza’s cross-complaint, Monica and Does 11 through 20,
and each of them, are required to indemnify and hold [Garcia
Legal] harmless from these claims. . . .”
2. Monica’s Special Motion To Strike
On November 30, 2020 Monica moved to strike Garcia
Legal’s cross-complaint pursuant to section 425.16. Monica
argued Garcia Legal’s cause of action for indemnity arose from
(indeed, was based entirely on) Monica’s protected petitioning
1 We rely on the trial court’s quotation from Garcia Legal’s
cross-complaint because Monica, now representing herself on
appeal, without seeking a court order to protect confidential or
privileged information, included a heavily redacted version of the
pleading in her appellant’s appendix, disclosing only Garcia
Legal’s identification of parties and prayer for relief. (See Cal.
Rules of Court, rule 8.46(c) [“[a] record filed or lodged publicly in
the trial court and not ordered sealed by that court must not be
filed under seal in the reviewing court”].)
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activity—written and oral statements made in, or in connection
with, a judicial proceeding (step one of the section 425.16
analysis). She further asserted the indemnity claim lacked merit
because all her purported misconduct was absolutely protected by
the litigation privilege in Civil Code section 47, subdivision (b)(2),
and, in any event, because Esperanza’s claim against Garcia
Legal was based in contract, not tort, there was no basis for a
claim of equitable indemnity (step two of the section 425.16
analysis). Finally, again insisting that Esperanza’s cross-
complaint was a contract action, not one for legal malpractice
against Garcia Legal, Monica contended cases holding legal
malpractice actions were not subject to a section 425.16 special
motion to strike were not applicable to her motion.
In opposition Garcia Legal insisted Esperanza’s cross-
complaint, which sought to recover fees previously paid in the
304 Crane litigation, although phrased as one for breach of
contract, alleged Garcia Legal had breached its professional
obligations as measured by the standard of care owed by
attorneys and was, for all practical purposes, a claim for
professional negligence. As such, Garcia Legal argued, its cross-
complaint for indemnity was not subject to a special motion to
strike under the court of appeal’s analysis in Chodos v. Cole
(2012) 210 Cal.App.4th 692. Garcia Legal also asserted there
was a probability it would prevail on the merits of its indemnity
claim, including a lengthy declaration by Garcia to support this
argument.2
2 In his declaration, for example, Garcia explained Garcia
Legal’s representation of Esperanza as Monica’s cocounsel was
limited to real property issues; Monica remained exclusively
responsible for prosecuting her mother’s claim for damages. In
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The trial court denied the motion, finding Monica had
failed to carry her burden on the first step of a special motion to
strike. After quoting from Chodos v. Cole, supra,
210 Cal.App.4th at pages 702 through 704, the court explained,
“[T]he anti-SLAPP statute does not apply to claims of attorney
malpractice and a claim by an attorney against other attorneys
for equitable indemnity in connection with a claim of attorney
malpractice is not distinguishable from a client’s claim against an
attorney for malpractice. Here, while Esperanza does not assert
a cause of action for legal malpractice against Garcia Legal, her
theory of liability against Garcia Legal is based on Garcia Legal’s
negligence . . . .”
Monica filed a timely notice of appeal.
response to 304 Crane’s motions to compel discovery and for
discovery sanctions relating to the failure to produce documents
in connection with Esperanza’s deposition, Garcia Legal drafted
the portion of the opposition papers relating to real property
records, while Monica was to prepare the section dealing with
Esperanza’s medical records. According to Garcia, the draft
Monica provided him on the day the opposition was due “included
incomplete citations to cases, citations to cases that had been
overruled at least in part without noting the subsequent
treatment, and a reference to statutes that had been repealed
years before. As a result, [Garcia Legal] had to spend a
significant amount of time revising and correcting Monica’s
work.”
Monica objected to numerous portions of Garcia’s
declaration. The trial court declined to rule on the objections,
stating they were immaterial to the court’s disposition of the
motion. Monica does not challenge that aspect of the trial court’s
decision. We deny as unnecessary Monica’s motion to augment
the record to include her objections to Garcia’s declaration.
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DISCUSSION
1. The Special Motion To Strike: Governing Law and
Standard of Review
Section 425.16, commonly known as the anti-SLAPP
statute, makes available a special motion to strike certain
meritless claims early in the litigation: “A cause of action against
a person arising from any act of that person in furtherance of the
person’s right of petition or free speech under the United States
Constitution or the California Constitution in connection with a
public issue shall be subject to a special motion to strike, unless
the court determines that the plaintiff has established that there
is a probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1); see Rand Resources, LLC. v. City of Carson
(2019) 6 Cal.5th 610, 619-620 [“[a] court may strike a cause of
action only if the cause of action (1) arises from an act in
furtherance of the right of petition or free speech ‘in connection
with a public issue,’ and (2) the plaintiff has not established ‘a
probability’ of prevailing on the claim”].)
Pursuant to section 425.16, subdivision (e), an “‘act in
furtherance of a person’s right of petition or free speech under the
United States or California Constitution in connection with a
public issue’ includes: (1) any written or oral statement or
writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law,
(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, (3) any written or oral statement or writing
made in a place open to the public or a public forum in connection
with an issue of public interest, or (4) any other conduct in
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furtherance of the exercise of the constitutional right of petition
or the constitutional right of free speech in connection with a
public issue or an issue of public interest.”
In ruling on a special motion to strike under section 425.16,
the trial court engages in a now-familiar two-step process. “First,
the defendant must establish that the challenged claim arises
from activity protected by section 425.16. [Citation.] If the
defendant makes the required showing, the burden shifts to the
plaintiff to demonstrate the merit of the claim by establishing a
probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
384; accord, Bonni v. St. Joseph Health System (2021) 11 Cal.5th
995, 1009 (Bonni); Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1061 (Park).)
“A claim arises from protected activity when that activity
underlies or forms the basis for the claim.” (Park, supra,2 Cal.5th at pp. 1062-1063.) Thus, “[t]he defendant’s first-step
burden is to identify the activity each challenged claim rests on
and demonstrate that that activity is protected by the anti-
SLAPP statute. A ‘claim may be struck only if the speech or
petitioning activity itself is the wrong complained of, and not just
evidence of liability or a step leading to some different act for
which liability is asserted.’” (Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871, 884 (Wilson); see Bonni, supra, 11 Cal.5th
at p. 1009 [“[t]he defendant’s burden is to identify what acts each
challenged claim rests on and to show how those acts are
protected under a statutorily defined category of protected
activity”]; Park, at p. 1060.)
If the moving party fails to demonstrate that any of the
challenged claims for relief arise from protected activity (the first
step), the court properly denies the motion to strike without
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addressing the probability of success (the second step). (City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 80-81; Verceles v.
Los Angeles United School Dist. (2021) 63 Cal.App.5th 776, 784.)
We review de novo whether the moving party carried its
burden of demonstrating the activity from which the lawsuit
arises falls within the scope of section 425.16. (Geiser v.
Kuhns (2022) 13 Cal.5th 1238, 1250; see Wilson, supra, 7 Cal.5th
at p. 884; Park, supra, 2 Cal.5th at p. 1067.)
2. The Special Motion To Strike and Legal Malpractice
Claims
As Monica contends, an attorney’s litigation-related
activities, including, as pertinent here, the filing and prosecution
of a civil action on behalf of a client, generally constitute acts in
furtherance of a person’s constitutional right of petition. (See
Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [An act in
furtherance of the person’s right of petition or free speech
“includes communicative conduct such as the filing, funding, and
prosecution of a civil action. [Citation.] This includes qualifying
acts committed by attorneys in representing clients in
litigation”]; Optional Capital, Inc. v. Akin Gump Strauss, Hauer
& Feld LLP (2017) 18 Cal.App.5th 95, 113, 226 [“[i]t is well
established that the protection of the anti-SLAPP statute extends
to lawyers and law firms engaged in litigation-related activity”].)
Nonetheless, a two-decades-long line of cases, including
this court’s decision in Sprengel v. Zbylut (2015) 241 Cal.App.4th
140, has held “malpractice claims that challenge the competency
of an attorney’s legal services are not subject to section 425.16
because, in such cases, ‘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
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so.’” (Id. at pp. 154-155; accord, Kolar v. Donahue, McIntosh &
Hammerton (2006) 145 Cal.App.4th 1532, 1540; see Yeager v.
Holt (2018) 23 Cal.App.5th 450, 457 [“a typical attorney
malpractice suit is not subject to” section 425.16]; Robles v.
Chalilpoyil (2010) 181 Cal.App.4th 566, 578-579 [“section 425.16
does not shield statements made on behalf of a client who alleges
negligence in the defendant’s representation of the client or
breach of the duty of loyalty”]; Jespersen v. Zubiate-Beauchamp
(2003) 114 Cal.App.4th 624, 632 [section 425.16 does not apply to
“garden-variety attorney malpractice” action based on an
attorney’s failure to comply with discovery statutes and court
orders].) Despite occasional criticism (see, e.g., Sprengel, at
p. 158 (dis. opn. of Perluss, P. J.)), neither the Legislature nor the
Supreme Court has taken any action to disapprove any of these
cases. They are now a fixed point in anti-SLAPP jurisprudence.
(See generally People v. Latimer (1993) 5 Cal.4th 1203, 1213
[considerations of stare decisis have special force in the area of
statutory interpretation because the legislative branch remains
free to alter what the courts have done].)
Applying the reasoning of these cases, the court in Chodos
v. Cole, supra, 210 Cal.App.4th 692 concluded that section 425.16
did not apply to a “claim for indemnity [that was] grounded in
allegations of attorney malpractice.” (Id. at p. 705.) In Chodos
two attorneys sued their former client to recover unpaid fees
incurred representing the client in marital dissolution
proceedings. The client filed a cross-complaint for legal
malpractice. (Id. at pp. 696-697.) The attorneys filed a cross-
complaint for equitable indemnity against other attorneys who
had represented the client. (Id. at p. 697.) The second set of
attorneys filed special motions to strike, which the trial court
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granted. (Ibid.) Our colleagues in Division Five of this court
reversed. After acknowledging section 425.16 “does not apply to
claims of attorney malpractice,” the Chodos court reasoned that
“[i]ndemnity and malpractice may be different causes of action,
but that does not mean that the claim for indemnification based
on malpractice should be treated differently than a malpractice
claim for purposes of whether [section 425.16] is applicable.”
(Id. at pp. 702-704.)
3. Garcia Legal’s Cross-complaint for Indemnity, Based on
Monica’s Alleged Malpractice, Does Not Arise from
Protected Activity Under Section 425.16
Indemnity “refers to ‘the obligation resting on one party to
make good a loss or damage another party has incurred.’” (Prince
v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157.)
Equitable indemnity, as the name suggests, refers to a liability
that arises from the equities of a particular circumstance.3 Such
indemnity “‘is premised on a joint legal obligation to another for
damages,’” “subject to allocation of fault principles and
comparative equitable apportionment of loss.” (Id. at p. 1158; see
Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital
(1994) 8 Cal.4th 100, 114 [equitable indemnity “is premised on a
joint legal obligation to another for damages”].) “‘“The elements
of a cause of action for [equitable] indemnity are (1) a showing of
fault on the part of the indemnitor and (2) resulting damages to
the indemnitee for which the indemnitor is . . . equitably
responsible.”’” (C.W. Howe Partners Inc. v. Mooradian (2019)
3 While traditionally known as equitable indemnity, more
recently it has also been referred to as noncontractual implied
indemnity. (See Prince v. Pacific Gas & Electric Co., supra,
45 Cal.4th at p. 1157.)
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43 Cal.App.5th 688, 700; accord, Bailey v. Safeway, Inc. (2011)
199 Cal.App.4th 206, 217.)
As the Supreme Court instructed in Bonni, supra,
11 Cal.5th at page 1009, at the first step in analyzing a special
motion to strike under section 425.16, “courts are to ‘consider the
elements of the challenged claim and what actions by the
defendant supply those elements and consequently form the basis
for liability.’” (Accord, Park, supra, 2 Cal.5th at p. 1063.) Here,
Monica’s allegedly incompetent actions as Esperanza’s attorney
before and during the time Garcia Legal also represented
Esperanza supply the elements and consequently form the basis
for the claim Monica is obligated to indemnify Garcia Legal.
That is, the alleged indemnitee (Garcia Legal) contends an
attorney (Monica, the indemnitor) is responsible (in whole or in
part) for the damages the attorney’s client (Esperanza) seeks to
recover from the indemnitee because the indemnitor’s
professional negligence caused those injuries. The indemnity
cause of action, accordingly, arises from the attorney’s
professional negligence just as if the attorney’s client had filed a
legal malpractice cause of action directly against the attorney.
As the cases excepting legal malpractice lawsuits from the
ambit of section 425.16 posit, even where the alleged malpractice
occurs during litigation and the claims may have been triggered
by, or associated with, the attorney’s litigation activities, “they do
not arise out of those acts. [Citations.] Instead, they arise out of
[the attorney’s] breach of professional obligations” (Sprengel v.
Zbylut, supra, 241 Cal.App.4th at p. 155; see Finato v. Keith A.
Fink & Associates (2021) 68 Cal.App.5th 136, 142 [“‘“actions
based on an attorney’s breach of professional and ethical duties
owed to a client are not SLAPP suits, even though protected
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litigation activity features prominently in the factual
background”’”]; Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 880
[“the client is seeking recovery for the attorney’s failure to
competently represent the client’s interests and/or the attorney’s
breach of loyalty owed to the client, and not to recover for injuries
resulting from the attorney’s petitioning activities, even if these
activities were alleged to be wrongful and harmful to the client’s
interests”].)
Because Garcia Legal’s indemnity cause of action is based
on Monica’s alleged professional negligence, the trial court
correctly ruled the cause of action does not arise from protected
petitioning activity. Whether section 425.16 applies to an
indemnity claim against an attorney depends on whether the
attorney’s alleged conduct giving rise to his or her fault is
protected activity under section 425.16—not the identity of the
party bringing the indemnity claim. We fully agree with the
court in Chodos v. Cole, which explained, “If an act of malpractice
by an attorney . . . is not petitioning or free speech under
[section 425.16], that same act for the same client should not be
deemed to be such petitioning or free speech solely because it is
the basis of a claim for indemnity by someone other than the
client.” (Chodos v. Cole, supra, 210 Cal.App.4th at p. 705.)
In challenging the trial court’s ruling, Monica does not
contend Garcia Legal’s cross-complaint for indemnity is based on
anything other than her own purported legal malpractice while
representing Esperanza. Instead, without directly addressing (or
even citing) Chodos v. Cole, supra, 210 Cal.App.4th 692, Monica
attempts to avoid the holding of that case, as well as the entire
line of cases articulating the legal malpractice exception to
section 425.16, by arguing Esperanza’s cross-complaint against
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Garcia Legal is for breach of contract and common counts, not for
legal malpractice. Absent an underlying tort claim against
Garcia Legal, she contends, Garcia Legal has no basis to seek
equitable indemnity against Monica. Whatever the merit of that
argument, which certainly could have been raised by way of
demurrer, it is not pertinent to the step-one analysis of Monica’s
special motion to strike. The issue is whether Garcia Legal’s
indemnity claim against Monica arises from Monica’s protected
activity, not whether Esperanza’s cross-complaint against Garcia
Legal is based on contract or tort. For the reasons discussed, the
indemnity claim is not subject to a special motion to strike.
DISPOSITION
The order denying the special motion to strike is affirmed.
Garcia Legal’s motion for sanctions is denied. Garcia Legal is to
recover its costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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