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Cohen v. Brown

April 24, 2009; as modified May 22, 2009

ARLAN A. COHEN, M.D., J.D., PLAINTIFF AND RESPONDENT,
v.
MICHAEL BROWN, ESQ. ET AL., DEFENDANTS AND APPELLANTS.



APPEAL from an order of the Superior Court of Los Angeles County, Edward C. Simpson, Judge. Affirmed. (Los Angeles County Super. Ct. No. GC039861).

The opinion of the court was delivered by: Croskey, J.

Filed 4/24/09; opinion on rehearing

CERTIFIED FOR PUBLICATION

The defendants in this case, attorney Michael Brown and the California Lawyers Group, LLP*fn1 have appealed from an order denying their special motion to strike the plaintiff‟s first amended complaint (complaint). The motion was brought under Code of Civil Procedure section 425.16, the anti-SLAPP statute (§ 425.16, SLAPP-strategic lawsuit against public participation).*fn2

The trial court denied the motion because it determined that the activities of Brown on which the special motion to strike the complaint is based were not acts taken by Brown as a valid exercise of his rights of petition or free speech (§ 425.16, subds. (a) & (b)(1), but rather constituted extortion and were therefore illegal. We find the court‟s analysis is correct and we will affirm the court‟s order.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Underlying Action

According to plaintiff‟s complaint, the instant action has its beginnings in an earlier suit-a personal injury suit in which one Sidney Zerah (Zerah) sued two defendants, Dawnn Alane (Alane) and Irving Klein (Klein), after Klein made an illegal left turn into oncoming traffic in November 2005, and struck Alane‟s vehicle, which in turn struck Zerah‟s vehicle. Klein, who was in his 80‟s at the time, was cited for ignoring a traffic control device and making an unsafe turn. Zerah‟s car was totaled. Upon examination by physicians at the hospital to which he was taken, it was determined that Zerah‟s injuries included tears to both of his rotator cuffs necessitating surgery to both shoulders. After he was discharged from the hospital, however, Zerah noticed an onset of cognitive difficulties which materially compromised his ability to conduct the wholesale jewelry business which he and his brother operated. Between the family problems which the brother was experiencing and the cognitive difficulties being experienced by Zerah, the family business began to fail. Defendant Brown filed the underlying action against Alane, Klein and others, in June 2006, on behalf of Zerah, alleging they negligently caused the harm to Zerah.

2. Plaintiff Associates Into the Underlying Action

In his complaint, plaintiff alleges that he was associated into the underlying case in the following manner. In July 2007 defendant Brown contacted plaintiff and asked him to associate in and assist Brown by handling the medical experts in the case because plaintiff is both an attorney and a medical doctor. Brown told plaintiff that liability in the underlying suit was clear and the only issue was damages. Trial was originally set for January 2007 but was continued to September and then October 2007.

Plaintiff‟s complaint alleges that Brown did not mention, to plaintiff or to Zerah, that his license to practice law had been suspended by the State Bar on two occasions, which prevented him from practicing law for most of two years. What Brown did tell plaintiff is that he had handled thousands of cases, was an experienced trial attorney, had until recently been a member of a two attorney partnership but his partner had dissolved the partnership, and Brown had only a legal secretary helping him. Brown told plaintiff that the underlying case was operating under a contingency fee agreement whereby Brown would receive 40% of Zerah‟s verdict or settlement and Zerah would cover the costs of the suit once the settlement or verdict was obtained.

Plaintiff alleges in his complaint that Brown represented to him that the case had been properly prepared to that point, including the retention and payment of experts. In addition, Brown stated that the experts had been prepared for their depositions and provided with the relevant information experts normally require, and that all other relevant discovery had been completed. Based on those assurances, plaintiff agreed to associate into the case, and Brown and plaintiff agreed to divide the labor in the case equally, with plaintiff handling the depositions and trial testimony of the medical experts and Brown handling the remainder of the case. Brown and plaintiff agreed that if the case settled for up to $1.5 million, plaintiff would receive one-half of the fees received by Brown, and plaintiff would receive 25% of Brown‟s fees for any settlement above that amount; and, if the case did not settle, a further agreement would be reached about fee sharing. Prior to making the agreement, Brown repeatedly assured plaintiff that he had obtained Zerah‟s consent to plaintiff‟s association as co-counsel in the case and to the fee sharing agreement. Brown repeatedly assured plaintiff that Zerah had agreed in writing to the fee sharing agreement, as required by California Rules of Professional Conduct, rule 2-200,*fn3 and that Brown would forward a copy of that written agreement to plaintiff. However, no copy of such writing was ever sent by Brown. Plaintiff performed his duties on the underlying case while waiting to receive a copy of the writing that Brown represented had been signed by Zerah. When plaintiff met with Zerah to prepare a mediation brief, Zerah indicated that Zerah knew plaintiff was representing him in the underlying case along with Brown, knew plaintiff was doing a substantial amount of work for that case, and approved of the association between Brown and plaintiff.

3. Plaintiff's Efforts in the Underlying Suit

Plaintiff‟s complaint alleges that when Brown gave plaintiff the complete file on Zerah‟s case, plaintiff saw that Brown had made material misrepresentations about the work that had been done on the underlying case up to the point where plaintiff became associated. Brown had not spoken to and deposed the policemen and emergency medical personnel who were at the scene of Zerah‟s car accident, nor the various doctors who had examined and treated Zerah at the hospital to which he was taken after the accident. None of those persons had found Zerah to have any traumatic brain injuries or short term amnesia, although Zerah was claiming those damages. By the time plaintiff discovered that those witnesses had not been deposed or even interviewed by Brown, the discovery cutoff date had passed. Moreover, although Brown had designated an accident reconstructionist and a biomechanics expert, when the defendants noticed their depositions, Brown informed plaintiff that he had never actually retained these experts, paid them, nor given them information about the accident on which their opinions could be based. The economist that Brown did retain had not been paid and had not been given any information on which to base an economic analysis, and the only economic information that Brown had presented to the defendants showed that since the accident Zerah had not suffered a diminution in his salary. Other experts designated by Brown (vocational rehabilitation, speech and cognitive therapy, neurologist, psychiatrist) had not been prepared to the point of being ready to be deposed by the defendants, including not being given any of the reports and opinions of the other experts and medical personnel.

Further, according to plaintiff‟s complaint, Brown eventually confessed that contrary to his previous representation about how many trials he had handled, he had only handled three or four over the course of 25 years and none of them were the size of Zerah‟s case. Also, Brown said he could not handle any of the law and motion matters that came up, and so plaintiff had to do them. Brown told plaintiff he did not know how to prepare the various pretrial documents and so plaintiff had to prepare them as well. It was also plaintiff who had to defend the depositions of Zerah‟s experts. In speaking with the experts, plaintiff discovered each had a different theory of Zerah‟s damages and none of them knew the findings or opinions of Zerah‟s other experts, leaving plaintiff to explain the views of each expert to the others to develop a coherent theory of damages.

Plaintiff alleges that he deposed the expert witnesses of the central defendant in the case, Klein. They are experienced neurologists and expert witnesses and they took the position that because there were no overt signs of harm to Zerah at the time of the accident and when Zerah was examined at the hospital, Zerah did not have a traumatic brain injury from the accident and any dysfunction he claimed was actually psychological and without objective verification. That was a position that, if accepted by a trier of fact, would severely diminish the amount of the damages that Zerah might recover. However, based on plaintiff‟s preparation for their depositions, plaintiff was able to make the two defense experts concede during their depositions that to a reasonable medical probability, Zerah did sustain traumatic brain injury in the automobile accident, that any psychological problems Zerah had in addition to the traumatic brain injury were caused by that brain injury or by post traumatic stress related to the accident, and that therefore Zerah‟s work related harm was caused by the accident. Plaintiff was also able to persuade Zerah‟s accountant to divulge that Zerah‟s ...


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