However, Winning Plaintiff Attorney Negotiating Personal Injury Settlement Not Entitled to SLAPP Fee-Shifting Fees or Frivolous Appeal Sanctions.
Well, we have an appellate court decision saying fees disputes do not rise to constitutional protected activity under the SLAPP statute. We are not offended, because these usually are more in the nature of private disputes in most situations.
In Drell v. Cohen, Case No. B253688 (2d Dist., Div. 8 Dec. 5, 2014) (published), most of the litigation activity involved a fight between attorneys representing a personal injury claimant. After ex-attorneys for the claimant withdrew from representation albeit having an attorney’s lien, claimant’s second attorney negotiated a successful settlement with an insurer, who tendered a settlement check made payable to the second attorney and the ex-attorneys. That prompted second attorney to file a declaratory relief action relating to the impact of the ex-attorneys’ attorney lien. Ex-attorneys moved to SLAPP the declaratory relief complaint, but that was denied. The lower court also denied second attorney’s fee request predicated on the rejected theory that the SLAPP motion was frivolous.
All results were affirmed on appeal.
The appellate court found that the attorney lien dispute did not arise out of SLAPP “protected activity.” Here is how the panel put it: “None of the purposes of the anti-SLAPP statute would be served by elevating a fee dispute to the constitutional arena ….”
Because second attorney never cross-appealed the lower court fee denial, his claim of error could not be considered. Finally, although indicating the appeal by ex-attorneys had “no merit whatsoever and [was] poorly conceived,” the panel believed there was not enough to impose appellate sanctions for a frivolous appeal.