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Court of Appeal:
Malpractice Claim Against Firm Survives Anti-SLAPP Motion
Opinion Says Attorneys Fail to Show That Plaintiffs’ Claims Alleging Negligent Failure to File for Tax Relief Covering Millions of Dollars in Attorney Fees Relating to Probate Dispute Arise Out of Protected ‘Activity’
By Kimber Cooley, associate editor
Div. One of the Fourth District Court of Appeal has affirmed the denial of an anti-SLAPP motion filed by a law firm being sued by beneficiaries of an estate for professional negligence over an alleged failure to timely request a $5 million tax refund based on purportedly allowable deductions for attorney fees, saying the claims cannot be said to arise out of any “protected activity” when the allegations are based on non-action.
At issue is the anti-SLAPP statute, codified at Code of Civil Procedure §425.16, which provides that “[a] cause of action…arising from any act…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…there is a probability that the plaintiff will prevail on the claim.”
Subdivision (e) defines “act in furtherance of a person’s right of petition or free speech” to include “(1) any written or oral statement or writing made before a…judicial proceeding…, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a…judicial body.”
In an opinion, filed Tuesday and authored by Presiding Justice Judith McConnell, the court rejected the defendants’ argument that the causes of action against them arose from activities protected by §§425.16(e)(1) and (e)(2) because they were based on actions made as attorneys working on behalf of the representative of the estate during the pendency of a probate action. McConnell wrote:
“[T]he…[f]irm has been charged with failing to act or speak, not with making any affirmative statements or engaging in any specific communicative acts. The firm’s alleged failure to act or speak is not a written or oral statement made before, or in connection with an issue under consideration or review by, a judicial body or official proceeding. Therefore, the alleged conduct is not protected under Code of Civil Procedure section 425.16, subdivisions (e)(1) or (e)(2), and the trial court properly denied the anti-SLAPP motion at the first step of the inquiry.”
Justices Richard D. Huffman and Julia C. Kelety joined in the opinion.
Contentious Probate Action
Appealing the denial was the Redlands-based firm James B. Church & Associates P.C., which had served as legal counsel for Dennis Shogren, a certified public accountant who had been appointed to serve as the personal representative of the estate of Loren R. Kirk, in a contentious probate action following the decedent’s death in 2015.
After years of litigation, the parties to the probate matter settled their disputes in 2019, agreeing to distributions from the estate to beneficiaries including Kirk’s relative Barbara Sagehorn and a group of individuals referred to in the opinion as the “Carter Beneficiaries.”
In June 2023, Stephen Callister, as trustee for the Sagehorn Probate Action Trust, and Charles Bone, as attorney-in-fact for the Carter Beneficiaries, filed a petition for damages against the Church firm, Shogren, and Shogren’s accounting firm in probate court asserting professional negligence, ordinary negligence, and breach of contract claims.
The petition alleges that Shogren failed to amend an IRS tax return, or file a timely protective claim, after incurring significant legal fees following the initial filing. The petitioners contend that the fees were deductible and the failure to timely request a refund cost them millions of dollars.
They allege that the Church firm “failed to advise…Shogren…to make a protective claim for a refund on the Estate Tax Return, or to subsequently file such a claim prior to the expiration of the statute of limitations for amending (or supplementing) the return.”
Anti-SLAPP Motion
San Bernardino Superior Court Judge Candice A. Garcia-Rodrigo denied the Church firm’s anti-SLAPP motion request. She wrote:
“Although a legal malpractice action may be the subject of a SLAPP motion, not all claims for breaches of an attorney’s duties are protected under the anti-SLAPP statute….
“Here, Church Firm argued their alleged failure to advise is protected activity under both section 425.16 and the litigation privilege….Church Firm argued the failure to advise is protected activity because it is ‘unquestionably protected’ as an attorney giving legal advice….While the law protects ‘communicative acts performed by attorneys as part of their representation of a clien in a judicial proceeding…’…., Church Firm has not pointed to any communicative act…it performed for its client that form[s] the basis of the Petition….In this case, Church Firm has not pointed to any action it took or advice it gave that is the basis of this Petition.”
First-Step Failure
McConnell noted that anti-SLAPP motions are analyzed in a two-step process—the defendant must first prove that the causes of action arose from constitutionally protected speech or petitioning activities, then the burden moves to the plaintiff to show that the asserted claims have at least “minimal merit.” The jurist said the present motion fails at step one.
She set forth:
“The parties disagree about the alleged conduct giving rise to the causes of action. For its part, the Church Firm broadly claims the causes of action are based on the firm’s alleged rendering of ‘legal advice’ to its client, Shogren, and its ‘communications’ with Shogren, in connection with the administration of the Kirk estate and the filing of the estate’s tax returns. By contrast, the petitioners assert the causes of action have nothing to do with the affirmative advice or communications that took place between the firm and Shogren. Rather, they argue the causes of action are premised on the firm’s alleged failure to act and its alleged failure to advise Shogren about the need to file a timely protective claim for a refund. We conclude the petitioners have the better argument.”
Continuing, she remarked that “the firm points to a singular statement from the petitioners’ legal brief…in which the petitioners stated that the firm should be held liable, in part, because ‘the filing of the estate tax return[] and any legal advice related thereto[] [were] intended to affect the Petitioners as beneficiaries of the Estate[.]’ ” However, she concluded:
“We reject the…contention that this solitary statement from the opposition brief contradicted the allegations of the petition or otherwise muddied the waters about the alleged conduct underpinning the causes of action. The petitioners made the statement just discussed while describing why the relevant public policy considerations, on balance, warranted a recognition that the Church Firm owed a legal duty of care to the petitioners for negligence purposes. It did not in any way undercut the petition’s allegations that the firm breached its purported legal duty, as well as its contractual commitments, by failing to file a timely protective claim for a refund and failing to advise its client to file such a claim.”
Constitutionally Protected Conduct
The presiding justice commented that “[h]aving identified the alleged conduct giving rise to the causes of action, we turn now to whether the conduct is constitutionally protected speech or petitioning activity,” and opined:
“[U]nder the plain language of the anti-SLAPP statute, ‘[a] failure to speak cannot fall in any of the first three categories, which protect only ‘statement[s] or writing[s],’ and not the failure to make them.’….Thus, we agree with the trial court’s finding that the conduct giving rise to all three causes of action—i.e., the Church Firm’s alleged failure to file a protective claim for a refund and its alleged failure to advise its client to file a protective claim for a refund—are not protected speech and petitioning activities within either of the categories on which the firm relies.”
In a footnote, she explained:
“If a failure to speak is protected at all, it must fall [under subdivision (e)(4)], as ‘other conduct in 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.’….However, the Church Firm has never argued that the fourth category encompasses its alleged failure to file a protective claim for a refund or its alleged failure to advise its client about the need to file such a claim.”
McConnell declared that “[b]ecause the trial court properly found the Church Firm did not satisfy its first-step burden, we do not address whether the causes of action have minimal merit under the second anti-SLAPP prong.”
The case is Callister v. James B. Church & Associates P.C., 2025 S.O.S. 197.
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