Chodos v. Cole

Opinion

MOSK, J.

INTRODUCTION

A cross-complaint was filed against Attorney Hillel Chodos (Chodos) and another attorney for malpractice in connection with their representation in, and settlement of, a marital dissolution and related proceedings. Chodos cross-complained against other attorneys for indemnification for any malpractice award against him because, he alleged, those other attorneys had rendered advice concerning, reviewed, and approved the settlement of the dissolution and related proceedings. The attorneys successfully moved to strike Chodos’s cross-complaint under Code of Civil Procedure section 425.16—the anti-SLAPP (strategic lawsuit against public participation) statute.¹ Chodos appeals from those orders and from the orders awarding attorney fees against him. We reverse the orders striking the cross-complaint. We hold that the claim does not involve activity protected by the anti-SLAPP statute. We also hold that Chodos did not have to supply a reporter’s transcript of the argument before the trial court because we review the matter de novo, the trial court said it relied only on the papers submitted, and none of the parties relies on anything that occurred during that argument.

BACKGROUND

Chodos, a lawyer, and his former cocounsel, Hugh John Gibson, sued a former client, Navabeh P. Borman, for fees owing for their representation of her in marital dissolution proceedings and a related “Marvin” action.² Chodos and Gibson alleged in their complaint that despite the fact that Ms. Borman became mistrustful of them and their advice, and actually engaged three separate and independent lawyers to review their handling of her cases and to give her independent advice, Chodos and Gibson procured a settlement for Ms. Borman that she accepted. Chodos and Gibson claimed that Ms. Borman’s verbal agreement to pay their hourly rate was modified to provide for a contingency fee. Chodos and Gibson alleged Ms. Borman never paid them any attorney fees or costs advanced and refused to pay any attorney fees. They alleged that they did receive $215,000 from Mr. Borman as a result of a court order and credited that amount against attorney fees and costs owed by Ms. Borman. Chodos and Gibson sought unpaid attorney fees in the amount of $3.5 million or according to proof.

Ms. Borman, represented by Michael D. Dempsey and Dempsey & Johnson (sometimes collectively Dempsey), cross-complained against Chodos and Gibson for attorney malpractice in the handling of the underlying marital dissolution action and the Marvin action, including claims that, inter alia, Chodos and Gibson failed to prepare, misrepresented the terms of the proposed settlement prior to the execution, failed to enforce interim court orders, and failed to advise Ms. Borman on various issues. She also alleged conversion of property.

Chodos answered, denying liability, and filed a cross-complaint against Dana M. Cole (Cole), Stephen C. Johnson, Michael D. Dempsey, and Dempsey & Johnson for equitable indemnity. Chodos alleged that they acted as Ms. Borman’s concurrent, independent advisers and independent counsel while Chodos and Gibson represented her of record in the underlying marital dissolution proceedings and the Marvin action. He further alleged that Cole and Dempsey independently reviewed the proposed settlement; recommended to Ms. Borman that she accept it; and that she did so, not in reliance on the advice of Chodos or Gibson, whom she did not trust, but rather in reliance on the advice and recommendation of Cole and Dempsey. Thus, Chodos sought equitable indemnification for any amounts found to be due Ms. Borman on account of his alleged malpractice.

Cole filed a motion under section 425.16 (anti-SLAPP motion) to strike Chodos’s cross-complaint for equitable indemnity on the ground the cross-complaint “arose from” protected activity. Dempsey filed a separate but similar anti-SLAPP motion.

The trial court granted both anti-SLAPP motions. Cole then submitted a request for attorney fees and costs totaling $42,622.50, and the trial court awarded Cole $37,935 in attorney fees and costs. Dempsey submitted a separate request for attorney fees and costs totaling $51,069.20, and the trial court awarded to Dempsey $21,500.

Chodos appealed from the orders granting the anti-SLAPP motions and the award of attorney fees. As a result of enforcement proceedings by Cole and Dempsey, Chodos paid the attorney fees awards in full under protest, reserving his claims on appeal.

PROCEDURAL ISSUES

After the court granted the two anti-SLAPP motions and Cole’s attorney fees motion, Chodos filed a single notice of appeal. In his notice of appeal, Chodos identified the two anti-SLAPP motion rulings as well as the two rulings on the attorney fees motions. Although the anti-SLAPP motion rulings and the attorney fees award in Cole’s favor had been entered before Chodos filed his notice of appeal, the attorney fees award in favor of Dempsey had not been entered as of the time Chodos filed his notice of appeal. As a result, Dempsey filed a motion to dismiss Chodos’s appeal as to the attorney fees award because Chodos had failed to file a separate notice of appeal within 60 days after a file-stamped copy of that attorney fees order was served. We denied the motion to dismiss the appeal on this jurisdictional ground.

In addition, Dempsey and Cole argued and also moved that Chodos’s entire appeal should be dismissed based on Chodos’s failure to present an adequate record on appeal. They argued that Chodos’s failure to designate any of the reporter’s transcripts for the four motions that are the subject of this appeal precluded this court from examining the record. Although we denied the request to dismiss the appeal, we noted that “the failure to provide an adequate record warrants affirmance.” We sent out a request for further briefing as to the adequacy of the record, taking into account the omitted reporter’s transcripts and certain pleadings, and as to whether a timely notice of appeal had been filed with respect to the order for attorney fees in favor of Dempsey.

Chodos takes the position that he is not relying on anything that occurred at the hearings or in the missing documents, and therefore there is an adequate record. He also asserts that the notice of appeal sufficiently covered the later-filed orders on attorney fees.

In this case, Chodos’s appeal as to the attorney fees awarded Dempsey was based on the amount of the fees. The determination of the amount of the fees was made after the notice of appeal was filed. Whether the notice of appeal encompassed the postjudgment determination of attorney fees (compare Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688 [118 Cal.Rptr.3d 581] with Grant v. List & Lathrop (1992) 2 Cal.App.4th 993 [3 Cal.Rptr.2d 654]) is an issue we need not reach because we reverse the orders striking the cross-complaint.

DISCUSSION

A. Appealability and Standard of Review

An order granting a special motion to strike under section 425.16 is directly appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).) We review de novo the trial court’s order granting an anti-SLAPP motion. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326 [46 Cal.Rptr.3d 606, 139 P.3d 2]; Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1322-1323 [81 Cal.Rptr.3d 866].) We do not weigh the evidence; rather, we accept as true evidence favorable to Chodos, and evaluate evidence favorable to the moving parties, to determine whether as a matter of law, it defeats Chodos’s evidence. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 [46 Cal.Rptr.3d 638, 139 P.3d 30]; Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1279 [55 Cal.Rptr.3d 544].)

B. Adequacy of Record and Brief

The only submissions to the trial court were the papers filed in support of and in opposition to the anti-SLAPP motions. There is no indication that witnesses testified or evidentiary issues arose at the hearing. The trial court in its order granting the anti-SLAPP motions stated, “After carefully considering the moving papers, the opposition, the declarations in opposition and in support, the exhibits, the Court grants the respective motions to strike pursuant to Code of [Civil Procedure section] 425.16 . . . .” The legal issues decided were whether Chodos’s cross-complaint is covered by the antiSLAPP statute and whether the claim has sufficient merit to survive the anti-SLAPP motions. We reach only the issue of whether the claim is protected by the anti-SLAPP statute. We do not reach the issues regarding attorney fees.

California Rules of Court, rule 8.120(b) requires a reporter’s transcript on appeal only if “an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court . . . .” California Rules of Court, rule 8.130(a)(4) provides that an appellant may “elect[] to proceed without a reporter’s transcript.”³ None of the parties relies upon the oral argument before the trial court, and we decide a purely legal issue based on the filings before the trial court—as did the trial court. And, as noted, we review that trial court decision de novo. If we did determine that a reporter’s transcript was necessary “to prevent a miscarriage of justice,” we could, on our own, order the record augmented with a reporter’s transcript, with the cost to be borne by the appellant. (Cal. Rules of Court, rules 8.130(a)(4), 8.155.)⁴

In Martin v. Inland Empire Utilities Agency, supra, 198 Cal.App.4th 611, the court held that the defendant’s failure to supply a reporter’s transcript on appeal resulted in an inadequate record on the attorney fees issue. Here, we do not reach the issue of attorney fees. Other cases concerning the inadequacy of the record on appeal are not applicable to this case. For example, in Maria P. v. Riles (1987) 43 Cal.3d 1281 [240 Cal.Rptr. 872, 743 P.2d 932], our Supreme Court said that a reporter’s transcript on appeal or a settled statement was required with regard to an attorney fees award because the court could not determine “whether the trial court based its award on the lodestar adjustment method.” (Id. at p. 1295.) Similarly, in Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440 [94 Cal.Rptr.2d 143], a transcript of the proceedings was necessary to review a trial court’s determination of the reasonableness of an attorney fees order. (Id. at p. 447.) And in In re Kathy P. (1979) 25 Cal.3d 91 [157 Cal.Rptr. 874, 599 P.2d 65], the court held that a juvenile defendant failed to provide an adequate record on appeal in order to determine if she had been advised of her right to counsel. (Id. at p. 102.)

We do not believe existing Supreme Court authority requires a transcript of the hearing in connection with whether the anti-SLAPP statute applies to a specific pleading. The cases do not challenge the above quoted California Rules of Court.

Cole asserts that Chodos has not in his opening brief set forth an adequate summary of the facts. (Cal. Rules of Court, rule 8.120(a)(1)(C).) Chodos, however, has set forth facts sufficient for the issue we decide.

C. Legal Principles with Regard to Anti-SLAPP Motions

“ ‘A SLAPP suit—a strategic lawsuit against public participation—■ seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted Code of Civil Procedure section 425.16—known as the anti-SLAPP statute—to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]’ (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056 [39 Cal.Rptr.3d 516, 128 P.3d 713].)” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 34 [64 Cal.Rptr.3d 348].) “The goal [of section 425.16] is to eliminate meritless or retaliatory litigation at an early stage of the proceedings.” (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 806 [119 Cal.Rptr.2d 108].)

Section 425.16, subdivision (b)(1) provides that “[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).) In considering the application of the anti-SLAPP statute, courts engage in a two-step process. “ ‘First, the court decides whether the defendant has made a threshold- showing that the challenged cause of action is one arising from protected activity. ... If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.’ [Citation.]” (Taus v. Loftus (2007) 40 Cal.4th 683, 712 [54 Cal.Rptr.3d 775, 151 P.3d 1185].) “ ‘ “ ‘The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue. [Citation.]’ [Citation].” [Citations.]’ ” (Rohde v. Wolf, supra, 154 Cal.App.4th at pp. 34—35.) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 [124 Cal.Rptr.2d 530, 52 P.3d 703]; see Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456 [125 Cal.Rptr.2d 534].)

“To demonstrate a probability of prevailing on the merits, the plaintiff must show that the complaint is legally sufficient and must present a prima facie showing of facts that, if believed by the trier of fact, would support a judgment in the plaintiff’s favor. [Citations.] The plaintiff’s showing of facts must consist of evidence that would be admissible at trial. [Citation.] The court cannot weigh the evidence, but must determine whether the evidence is sufficient to support a judgment in the plaintiff’s favor as a matter of law, as on a motion for summary judgment. [Citations.]” (Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1346 [63 Cal.Rptr.3d 798]; see College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719, fn. 5 [34 Cal.Rptr.2d 898, 882 P.2d 894]; 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585 [132 Cal.Rptr.2d 789].)

In this case, Chodos claims indemnity for an attorney malpractice claim based on the representation of Ms. Borman by Cole and Dempsey. Specifically, Chodos asserts that if the settlement he negotiated was the result of attorney malpractice, the malpractice was not committed by him or Gibson, but rather by one or both of the cross-defendants Cole and Dempsey, who “independently reviewed and approved” the settlement and “concurred in the propriety of said settlement and its benefit to defendant [(Ms. Borman)], and advised her to accept it, and on whose advice she relied in deciding to accept it.” Chodos’s indemnity claim does not seek relief specifically based on the substitution of Cole or Dempsey as counsel for Ms. Borman or any of their filings. The only relief Chodos seeks is a determination that if he is liable for attorney malpractice in connection with Ms. Borman’s settlement agreement, Cole and Dempsey, by virtue of their review and approval of the settlement agreement in issue, should indemnify him for any amount he is found obligated to pay Ms. Borman. Chodos asserts that his claims are limited strictly to the issue of his, Dempsey’s, and Cole’s alleged attorney malpractice.

The authorities have established that the anti-SLAPP statute does not apply to claims of attorney malpractice. As stated in one authoritative work, “California courts have held that when a claim [by a client against a lawyer] is based on a breach of the fiduciary duty of loyalty or negligence, it does not concern a right of petition or free speech, though those activities arose from the filing, prosecution of and statements made in the course of the client’s lawsuit. The reason is that the lawsuit concerns a breach of duty that does not depend on the exercise of a constitutional right.” (4 Mallen & Smith (2012 ed.) Legal Malpractice, § 37:11, pp. 1460-1461, fns. omitted; see 1 Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2012) f 7:644, pp. 7(II)-15 to 7(H)-16 (rev. # 1, 2012).) Even though the “petitioning activity is part of the evidentiary landscape within which [claimant’s] claims arose, the gravamen of [claimant’s] claims is that [the former attorney] engaged in nonpetitioning activity inconsistent with his fiduciary obligations owed to [claimant] . . . .” (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272 [99 Cal.Rptr.3d 805].)

In Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532 [52 Cal.Rptr.3d 712], the plaintiffs retained a law firm to file suit against their neighbors for constructing property improvements in violation of covenants, conditions, and restrictions. The plaintiffs lost the case and then filed an attorney malpractice action against the firm. The firm filed an anti-SLAPP motion, which the trial court denied. The Court of Appeal affirmed, stating, “Our interpretation of the ‘arising from’ requirement of section 425.16, subdivision (b), is consistent with the anti-SLAPP statute’s express purpose: ‘The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.’ . . . [][] A malpractice claim focusing on an attorney’s incompetent handling of a previous lawsuit does not have the chilling effect on advocacy found in malicious prosecution, libel, and other claims typically covered by the anti-SLAPP statute. In a malpractice suit, 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 so. Instead of chilling the petitioning activity, the threat of malpractice encourages the attorney to petition competently and zealously. This is vastly different from a third party suing an attorney for petitioning activity, which clearly could have a chilling effect.” (Id. at pp. 1539-1540, citation omitted.)

Other cases come to the same conclusion. In Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179 [20 Cal.Rptr.3d 621], the court held that the anti-SLAPP statute did not apply to a client’s action against a law firm for breach of loyalty. In Freeman v. Schack (2007) 154 Cal.App.4th 719 [64 Cal.Rptr.3d 867], the court held that the anti-SLAPP statute did not apply to an alleged breach of fiduciary duty of a law firm to its client. (See Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566 [104 Cal.Rptr.3d 628] [anti-SLAPP statute did not apply to claim against attorney and expert for pressuring and deceiving plaintiff into settlement so they could market a new safety device]; PrediWave Corp. v. Simpson Thacher & Bartlett LLP (2009) 179 Cal.App.4th 1204 [102 Cal.Rptr.3d 245] (PrediWave) [anti-SLAPP statute does not apply to client’s claim against attorneys for a conflict of interest and negligence]; Hylton v. Frank E. Rogozienski, Inc., supra, 177 Cal.App.4th at p. 1274 [“claims allude to [the attorney’s] petitioning activity, but the gravamen of the claim rests on the alleged violation of [the attorney’s] fiduciary obligations to Hylton by giving Hylton false advice to induce him to pay an excessive fee to [the attorney]”]; Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624 [7 Cal.Rptr.3d 715] (Jespersen) [malpractice by failing to respond to discovery requests and comply with court orders not covered by anti-SLAPP statute]; cf. Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 809 [63 Cal.Rptr.3d 575] [claims of sellers of real estate in connection with denial of street access not subject to anti-SLAPP statute even though they raise collateral or incidental facts with respect to conduct covered by the anti-SLAPP statute]; but see Mindys Cosmetics, Inc. v. Dakar (9th Cir. 2010) 611 F.3d 590, 598 [“no categorical exclusion of claims of attorney malpractice from the anti-SLAPP statute”].)

As stated by the court in PrediWave, supra, 179 Cal.App.4th at page 1228, “We recognize that the [anti-SLAPP] statute makes ‘[a] cause of action against a person arising from any act of that person in furtherance of the person’s [constitutional] right of petition or free speech ... in connection with a public issue . . . subject to a special motion to strike’ .... Although this statutory language has been interpreted broadly to protect qualifying statements made or conduct undertaken by a person on another person’s behalf against a cause of action by a third person . . . , it is unreasonable to interpret this language to include a client’s causes of action against the client’s own attorney arising from litigation-related activities undertaken for that client. ‘The cardinal rule of statutory construction is to ascertain and give effect to the intent of the Legislature. . . .’ Although a broad interpretation of the anti-SLAPP statute is statutorily mandated . . . , an overly broad interpretation of section 425.16, subdivision (b), that includes such client lawsuits unreasonably expands the language beyond the clear legislative purpose and leads to absurd results.” (Citations omitted.)

For purposes of the anti-SLAPP statute, 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. The claim for indemnity is still grounded in allegations of attorney malpractice. Indemnity 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 the anti-SLAPP statute is applicable.

The principal basis of Chodos’s claim concerns conduct constituting a breach of professional duty, not statements or filings made in connection with litigation. There is only one claim of indemnity based on alleged malpractice, not a mixed claim as asserted by Dempsey.

Attorney malpractice cases to which the anti-SLAPP statute has been held not to apply have involved a client suing a former attorney who represented that client. It has been stated that acts by attorneys when they have not represented the plaintiff are subject to the anti-SLAPP statute. The court in PrediWave, supra, 179 Cal.App.4th at pages 1221 and 1227-1228 drew a distinction between a client’s cause of action against an attorney’s acts on behalf of that client and a cause of action by a third person for “statements made or conduct undertaken by a person on another person’s behalf.” (Id. at p. 1228; see Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 157-158 [143 Cal.Rptr.3d 17].) The court said that a client’s action against an attorney for acts on behalf of the client “[is] not being brought ‘primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition ....’(§ 425.16, subd. (a).)” (PrediWave, supra, 179 Cal.App.4th at p. 1227.) The court in PrediWave held that the anti-SLAPP statute does not apply to a claim by a client against former attorneys for breaches of their duties by, inter alia, negligence and conflicts of interest.

In Thayer v. Kabateck Brown Kellner LLP, supra, 207 Cal.App.4th 141, the plaintiff sued the defendant attorneys based on their disposition of her husband’s settlement proceeds from a class action. The plaintiff was not a client of the attorneys. The causes of action were fraud, tortious interference, violations of certain statutes, declaratory relief, conversion, and breach of trust. There was no cause of action for malpractice. The court held that the anti-SLAPP statute applied to the plaintiff’s claims against the attorneys. The court did say that only claims “brought by former clients against their former attorneys based on the attorneys’ acts on behalf of those clients—may not be within the ambit of SLAPP.” (Id. at p. 158.) The court, however, went on to observe that the plaintiff was not a client “[a]nd no malpractice claim was alleged.” (Ibid.)

The types of actions cited by the court in PrediWave, supra, 179 Cal.App.4th at pages 1220 and 1228 as third party actions subject to the anti-SLAPP statute involved either claims for allegedly false statements made on behalf of others (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106 [81 Cal.Rptr.2d 471, 969 P.2d 564] [anti-SLAPP statute applied to claims of residential property owners against a tenant counseling service for false and defamatory statements]) or claims against an attorney for abuse of process in representing others to collect a judgment (Rusheen v. Cohen, supra, 37 Cal.4th 1048 [anti-SLAPP statute applies to claims against an attorney representing an adversary in connection with collection activities]). The claims in those cases are significantly different than the claim in this case.

All of the authorities hold that a “garden-variety” claim for attorney malpractice (Jespersen, supra, 114 Cal.App.4th at p. 632) is not covered by the anti-SLAPP statute. Those authorities should apply here, and there should be no distinction between cases against a former attorney and cases such as this one. In determining whether the anti-SLAPP statute applies, the court must focus on the act which defines the “principal thrust or gravamen” of the cause of action (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188 [6 Cal.Rptr.3d 494]; see City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79 [124 Cal.Rptr.2d 519, 52 P.3d 695]). Because a client’s action against an attorney for a breach of duty by an act of malpractice is not subject to the anti-SLAPP statute, logically Chodos’s action based on a breach of duty by an act of malpractice likewise should not be subject to the anti-SLAPP statute. The conduct of an attorney for purposes of the anti-SLAPP statute is the same as to the case of a client’s claim against a former attorney and as it is to the claim here for indemnification. If an act of malpractice by an attorney alleged by a client is not petitioning or free speech under the anti-SLAPP statute, 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.

Cole and Dempsey rely upon Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482 [72 Cal.Rptr.3d 847] (Taheri), in which one attorney brought an action against another for interference with contractual relations based on claims of improper solicitation of the client during pending litigation. The trial court granted an anti-SLAPP motion to strike by the defendant attorney, and the Court of Appeal agreed because the complaint “plainly shows it arose from . . . communications with [the client] about pending litigation, and from . . . conduct in enforcing the settlement agreement on [the client’s] behalf.” (Id. at p. 489.) The court specifically distinguished Jespersen, supra, 114 Cal.App.4th 624 because that case concerned an attorney malpractice action, rather than direct communications concerning a pending lawsuit. (Taheri, supra, 160 Cal.App.4th at p. 489.)

We deal with a claim based on a breach of duty—malpractice—and not with a claim based on direct communications concerning a lawsuit. Moreover, the court in Taheri, supra, 160 Cal.App.4th 482 appeared to find that the plaintiff’s claims fell within the anti-SLAPP statute because they were based upon “conduct in enforcing the settlement agreement.” (Id. at p. 489.) In that case, the conduct complained of by plaintiff attorney included a motion filed by defendant attorney to enforce a settlement agreement on behalf of the client. (Id. at p. 486.) Regardless of whether Taheri was correctly decided, those are not the facts here.

Malpractice involves a breach of duty by neglecting to do an act or doing an act, not the right of petition. The claim here does not concern petitioning activity at all. Cases cited by Cole and Dempsey in which the anti-SLAPP statute was applied are not applicable here. (See, e.g., Navellier v. Sletten, supra, 29 Cal.4th at p. 89 [a claim for inducing with false statements a release or settlement]; Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 842 [36 Cal.Rptr.3d 385] [negotiating a claim for fraud by inducing a stipulated judgment and default under it]; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1408-1409,1420 [103 Cal.Rptr.2d 174] [a stipulated settlement and an issuance of a letter while representing a client in a pending action, and claims of defamation, misrepresentation, and infliction of emotional injury].)

Cole and Dempsey invoke the litigation privilege set forth in Civil Code section 47, subdivision (b). That section is not coextensive with the first prong of the anti-SLAPP statute. (Flatley v. Mauro, supra, 39 Cal.4th at p. 323; Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1262-1263 [73 Cal.Rptr.3d 383].) If the privilege is applicable, it would be considered under the second prong of the anti-SLAPP statute—likelihood of success on the merits—only if the activity was protected under the first prong of the anti-SLAPP statute. (Neville v. Chudacoff supra, 160 Cal.App.4th at p. 1263, fn. 7.) As we conclude that the activity is not.protected, we do not need to reach the litigation privilege issue. (Robles v. Chalilpoyil, supra, 181 Cal.App.4th at p. 582.)

The orders granting the motions to strike are erroneous. In reversing, we do not reach the issues regarding attorney fees because Cole and Dempsey are not entitled to attorney fees in connection with the orders granting the motions to strike.

DISPOSITION

The orders granting the motions to strike and awarding attorney fees under section 425.16 are reversed. Chodos shall recover his costs on appeal.

Armstrong, 1, concurred.

1 All further statutory references are to the Code of Civil Procedure unless otherwise specified.

2 Marvin v. Marvin (1976) 18 Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106].

3 Under Los Angeles Superior Court Policy Regarding Normal Availability of Official Court Reporters and Privately Arranged Court Reporters, effective May 15, 2012, the availability of court reporters has been limited.

4 To the extent Chodos’s appendix omits certain pages from the pleadings, we have obtained copies of those documents from Chodos, and on our own motion we take judicial notice of those documents (Martin v. Inland-Empire Utilities Agency (2011) 198 Cal.App.4th 611, 621, fn. 5 [130 Cal.Rptr.3d 410]), and conclude that none of them is relevant to this appeal.