Finato v. Keith A. Fink & Associates
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Finato sued her former attorneys, asserting malpractice, breach of fiduciary duty, breach of contract, and intentional interference with prospective economic advantage. The defendants argued that all of the alleged conduct took place in connection with judicial proceedings and was protected under Code of Civil Procedure section 425.16,1 the antiSLAPP (Strategic Lawsuit Against Public Participation) statute. The court of appeal affirmed the striking of two causes of action under antiSLAPP.
On remand, the defendants moved for judgment on the remaining allegations, claiming they were time-barred. The court granted the motion with leave to amend to clarify when certain events took place. Plaintiff filed a first amended complaint (FAC). Defendants filed a second anti-SLAPP motion arguing that eight paragraphs in the FAC repleaded allegations analogous to allegations struck in the first appeal. The court denied the motion. To the extent the allegations were precluded by the first appeal, the court concluded that the challenge should have been brought as an ordinary motion to strike material not in conformity with an earlier court order, not as an anti-SLAPP motion. The court held that seven challenged paragraphs did not implicate protected conduct under the reasoning of the first appeal.
The court of appeal reversed in part. A second anti-SLAPP motion was a proper procedural vehicle to challenge an amended pleading renewing allegations previously stricken under section 425.16. The court affirmed that the other seven challenged paragraphs do not arise from protected conduct.
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