Anti-SLAPP Applies To Post-MFAA Arbitration Lawsuit

By Anahid Agemian
June 2020


As an attorney, you have been kept up nights wondering whether, after prevailing in a mandatory fee arbitration with your former client, you might subject yourself to an Anti-SLAPP motion (which, if you do not prevail will likely require you to pay the other side’s attorneys’ fees and costs) should you file a lawsuit for malicious prosecution against that client. Well, your concerns can now be laid to rest.

[As an aside, fee dispute arbitration is available not only to a client but may be instituted by an attorney. (By-the-way LACBA can help with this as, fortuitously, it has a fee dispute program ready to serve you.) Should a client opt to engage in fee dispute arbitration under the California Mandatory Fee Arbitration Act, “MFAA,” the attorney is required to be included. However, the attorney also has a right to seek arbitration under the MFAA. If the client consents, the dispute can be resolved though the programs which administer arbitrations (and sometimes mediations) under the MFAA.]

The 5/26/20 published opinion in Dorit v. Noe, A157433, answers your questions in the affirmative at least should you want to file a post-MFAA lawsuit for malicious prosecution against your former client.

It seems that after Noe did not prevail in his MFAA arbitration with his former attorney, Dorit, and neither sought trial de novo from the non-binding arbitration award (which became binding by operation of law) Dorit, apparently aggrieved at having a former client question his billings, filed a lawsuit for malicious prosecution against Noe. Noe then filed a special, anti-SLAPP, motion to strike.

Upon hearing on the motion, the trial court ruled that Dorit’s lawsuit arose from Noe’s protected activity (seeking MFAA arbitration.) For those of you keeping score, that is prong 1 of the 2 prong anti-SLAPP test. The court then opined that Dorit’s lawsuit had merit – prong 2, likewise, satisfied.

The appellate court thought differently. While it found that the MFAA arbitration qualifies as an “official proceeding authorized by law” thereby satisfying prong 1 of the test, it had a different take on prong 2. The court’s reasoning is as follows: Once the moving party establishes prong 1, plaintiff must establish that there is a “probability of success” in the claims of the lawsuit in order to satisfy prong 2 and allow for the over-ruling of the motion to strike. In the malicious prosecution area, where the standard is very high for a plaintiff to meet, it is not probable that the plaintiff would prevail. In Dorit’s case, the appellate court engaged in a semi-summary judgment and concluded that Dorit was not likely to prevail. Hence, prong 2 is not satisfied and Noe gets his motion to strike the complaint granted. (Still unknown is whether upon remand the trial court granted Noe his attorneys’ fees and costs pursuant to the anti-SLAPP statutes.)

Moral: When the MFAA arbitration is over, regardless of outcome, think before you act.

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