[co-author: Victoria Boyko]

In Drell v. Cohen, 2014 DJDAR 16055, the California Court of Appeal for the Second District decided whether an attorney’s lien letter which asserted the right to fees, was the proper subject of an anti‑SLAPP suit motion.

A client hired a law firm to represent him in a matter on a contingent fee basis. Subsequently, the trial court granted the law firm’s motion to be relieved as counsel. After winning the motion, the firm sent a letter asserting an attorney fee lien to the insurance carrier for one of the defendants. The client then hired new counsel. Following settlement of the case, the insurance carrier made a check payable to both the old and new lawyers. The new lawyer sued the old one, seeking declaratory relief as to each attorney’s respective rights to fees. In response, the former lawyer filed an anti‑SLAPP motion under Code of Civil Procedure Section 425.16. The new lawyer argued that the complaint was filed because the firm was lawfully asserting its rights under the lien. The trial court denied the motion.

On appeal, the court affirmed the decision of the trial court. The court noted that to prevail on an anti‑SLAPP motion, the moving party must show that the challenged causes of action arose from protected activity such as free speech rights. The claim must be “based on” the protected petitioning activity. A complaint is considered a SLAPP suit when the gravamen of such complaint states that the defendants acted wrongfully by engaging in protected activity. Because the complaint here sought a declaration of the parties’ rights to attorney fees, the court of appeal concluded that the claim did not meet that threshold.  The court of appeal concluded that the trial court correctly denied the anti‑SLAPP motion because the gravamen of the complaint was not based on protected activity.