by Christopher J. Graham and Joseph P. Kelly

Hayes v. Hutchinson, Case No. B237556 (Ca. Ct. App. 2nd Jan. 24, 2013) (unpublished)

Appellate court affirmed trial court’s order denying defendant lawyer’s anti-SLAPP motion to strike. Defendant lawyer had been hired by the band “Linkin Park” to review royalty agreements negotiated by plaintiff lawyer. Plaintiff lawyer sued defendant lawyer for defamation, trade libel and intentional interference with contractual relations based on statements made by defendant lawyer in an audit report critical of plaintiff lawyer’s conduct. Defendant lawyer filed a motion to strike under California’s anti-SLAPP law which provides, in part, that statements made in anticipation of litigation are protected speech. Here, defendant lawyer claimed that his report was a statement in anticipation of litigation because he was asked to prepare it by a legal malpractice attorney retained by the band. But defendant lawyer ultimately failed to meet his burden that the statements were made in anticipation of litigation because the evidence showed that the band didn’t have plans to sue plaintiff lawyer.