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    Post: SLAPP

    Posted by Mike B. on 1/07/08

    San Diego courts look like a bad place to cry the "SLAPP"

    Metropolitan News-Enterprise

    Tuesday, December 18, 2007

    Page 1

    C.A. Reinstates Malicious Prosecution Claim Against Law Firm

    New Counsel May Be Held Responsible for Unsupported
    Allegations in Prior Pleading, Divided Panel Says

    By STEVEN M. ELLIS, Staff Writer

    A law firm that entered a case well after it was underway
    and played a limited role may still be the subject of a
    malicious prosecution action, the Fourth District Court of
    Appeal ruled yesterday.

    Partially reversing an order of San Diego Superior Court
    Judge Jay M. Bloom, Div. One ruled that the law firm of
    LeFave & Rice’s late entry and limited role in a suit by a
    tenant against her former landlord for failure to maintain
    apartments in a habitable condition was not sufficient to
    insulate the firm from a subsequent malicious prosecution
    action by the landlord because the underlying complaint
    pled numerous unsupported causes of action.

    Writing for the majority, Justice Cynthia Aaron said that
    Sycamore Ridge Apartments LLC had presented sufficient
    evidence to withstand an anti-SLAPP motion filed by LaFave
    because the firm, by associating into the case, became the
    proponents of all of the tenant’s claims, and had an
    obligation to take immediate steps to dismiss claims it
    knew or should have known were without merit.

    Assertions Insufficient

    As a result, Aaron said, LaFave’s assertions that it had a
    limited role, lacked input in deciding when and what to
    file, and believed that the lawsuit was not being
    prosecuted by malice or ill will were insufficient to
    withstand Sycamore’s prima facie showing that the firm
    lacked probable clause to pursue the tenant’s claims.

    However, in a sharp dissent, Justice Richard D. Huffman
    complained that the majority was adopting a principle
    whereby an attorney would be charged with knowledge of
    defects in a case “at the very moment of a formal

    “I cannot accept the proposition that a lawyer who
    associates into ongoing litigation to provide a limited
    service and does nothing else can be said to have ‘pursued’
    a malicious prosecution,” he said. “[T]here must be some
    evidence of conduct other than signing an association of
    counsel form before one acquires liability for the acts
    which have gone before.”

    The case arose after another tenant of the apartment
    complex contacted the law firm of Naumann & Levine LLP to
    complain about the complex’s conditions. According to the
    Court of Appeal, an investigation allegedly revealed high
    airborne readings of aspergillus/penicillium spores,
    maintenance deficiencies, roof leaks, vermin infestations,
    and flying termites at the complex.

    Unsolicited Letters

    The Naumann firm sent unsolicited letters to tenants of the
    complex, including contingency fee agreements to be signed
    and returned by those who wished to be represented in
    future litigation, and ultimately filed a complaint against
    the complex on behalf of 45 individual plaintiffs, setting
    forth 18 causes of action arising out of the allegations of
    poor living conditions and unfair business practices.

    One of the tenants included in the litigation was Shirley
    Powell, who indicated that she had suffered health problems
    as a result of living in the apartment. However, when the
    complex sent interrogatories to Powell regarding the
    alleged health problems, she failed to indicate any mental
    or emotional distress that she had suffered, or any other
    breaches in her rental agreement that rendered the
    apartment “unsuitable to live in.”

    Nevertheless, the Naumann firm filed a statement of damages
    which included $20,000 in damages for emotional distress,
    $2,000 for destruction of property, and $50,000 in punitive
    damages on Powell’s behalf.

    The LaFave firm then joined the action by making an
    appearance on behalf of the plaintiffs on Oct. 5, 2004,
    after having previously filed an association of counsel
    firm with the court. The firm claimed to have joined to
    provide assistance only with regard to the mold exposure
    aspect of the litigation.

    Powell, who by that time had missed two scheduled
    depositions, decided to dismiss her portion of the case
    shortly thereafter.

    Almost one year later, Sycamore filed a complaint for
    malicious prosecution against both the Naumann and LaFave
    firms, as well as individual attorneys, alleging that they
    had filed and maintained Powell’s portion of the suit in
    bad faith, maliciously, and without probable cause. The
    defendants both filed special motions to strike under the
    state’s anti-SLAPP statute, with the LaFave defendants
    citing their late involvement, their limited participation,
    and their lack of direct contact with Powell.

    The trial court denied the Naumann defendants’ motion,
    ruling that their was a triable issue as to whether they
    had probable cause to prosecute Powell’s claims, but
    granted the LeFave defendants’ motion after finding no
    evidence that they had participated in the lawsuit.

    On appeal, all three members of the court voted to affirm
    the trial court’s decision as to the Naumann defendants.
    However, the panel reversed the trial court’s decision that
    the LaFave defendants could not escape potential liability
    because the entered the case late, and only shortly before
    it was dismissed.

    “Before agreeing to become attorney of record in a pending
    case, an attorney should, at a minimum, be familiar with
    his client’s claims and should have made a preliminary
    determination whether probable cause exists to support the
    asserted claims or defenses,” Aaron said.

    Counsel for Sycamore did not return calls seeking comment.

    Robert F. Semmer, counsel for LaFave, called the majority’s
    opinion “very problematic in terms of exposure for
    associating attorneys.” He said that his client was still
    reviewing his options in terms of how to proceed.

    Aaron was joined in her opinion by Justice Alex C. McDonald.

    The case is Sycamore Ridge Apartments LLC v. Naumann, 2007
    S.O.S. 7334.

    Copyright 2007, Metropolitan News Company

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