In a reversal for the defendants, the Fourth District Court of Appeals reversed an order granted by the San Diego Superior Court striking a malpractice action brought against an attorney. Indicating that the petition activity was incidental to the petition action activity, and thereby not satisfying the first inquiry in the anti-SLAPP procedure, i.e., whether the conduct complained of arose from petition activity, the Court of Appeals held “We agree with plaintiffs that the principal thrust of the conduct underlying their causes of action is not Schack’s filing or settlement of litigation. Stated another way, the “activity that gives rise to [Schack’s] asserted liability” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92) is his undertaking to represent a party with interests adverse to plaintiffs,in violation of the duty of loyalty he assertedly owed them in connection with the Freeman II litigation. “. . . . f the allegations of protected activity are only incidental to a cause of action based essentially on nonprotected activity, the mere mention of the protected activity does not subject the cause of action to an anti-SLAPP motion.” (Scott v. Metabolife Intern., Inc. (2004) 115 Cal.App.4th 404, 414-415.) In our view, plaintiffs allegations concerning Schack’s filing and settlement of the Hemphill litigation are incidental to the allegations of breach of contract, negligence in failing to properly represent their interests, and breach of fiduciary duty arising from his representation of clients with adverse interests. . . .”
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