Filed 3/13/23 Garcia Legal v. Molina CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

GARCIA LEGAL,

Cross-complainant and 

Respondent,

v.

MONICA MOLINA,

Cross-defendant and 

Appellant.

 B312235

 (Los Angeles County

 Super. Ct. No. 

 19STCV05642)

APPEAL from an order of the Superior Court of 

Los Angeles County, Yolanda Orozco, Judge. Affirmed.

Monica R. Molina, in. pro. per., for Cross-defendant and 

Appellant.
2

Law Office of Dale E. Washington, Dale E. Washington; 

Garcia Legal and Steven Ray Garcia for Cross-complainant and 

Respondent.

____________________________

Monica R. Molina (Monica) and Garcia Legal, a 

Professional Corporation, represented Esperanza Molina 

(Esperanza), Monica’s mother, in a quiet title action that was 

eventually settled. Garcia Legal sued Esperanza to recover 

unpaid legal fees (just under $32,000). Esperanza filed a crosscomplaint against Garcia Legal, alleging it had breached the 

parties’ retainer agreement and the fees already paid 

(approximately $62,000) exceeded the value of the services 

provided. Garcia Legal then cross-complained against Monica for 

indemnity, contending, if any legal services performed by Garcia 

Legal did not benefit Esperanza (which it denied), the work was 

necessary to rectify the errors committed during the litigation by 

Monica while representing their joint client.

Monica filed a special motion to strike Garcia Legal’s crosscomplaint pursuant to Code of Civil Procedure section 425.16 

(section 425.16). The trial court denied the motion, ruling Garcia 

Legal’s indemnity claim did not arise from protected petitioning 

activity. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Original Real Property Lawsuit, Garcia Legal’s 

Action To Recover Fees and the Two Cross-complaints

Esperanza, represented by Monica, filed a quiet title action 

against 304 Crane, LLC in April 2017, alleging a right to an 

easement burdening 304 Crane’s property, which adjoined 

Esperanza’s, in the Mount Washington neighborhood of 
3

Los Angeles. Esperanza retained Garcia Legal and its principal 

Steven Ray Garcia (who described himself on the firm’s website 

as “the dirt lawyer”) in September 2017 to represent her, as 

cocounsel with Monica, in the litigation. Esperanza discharged 

Garcia Legal in mid-December 2018 while the parties were 

discussing settlement. The lawsuit settled shortly thereafter. 

Garcia Legal sued Esperanza on February 19, 2019 to 

recover unpaid legal fees of $31,864.61, alleging causes of action 

for breach of contract, open book account and declaratory relief. 

Esperanza on May 26, 2020 filed a cross-complaint for breach of 

contract and money had and received, alleging Garcia Legal 

breached its written agreement with Esperanza in connection 

with the 304 Crane litigation by misrepresenting Steven Garcia’s 

experience and expertise; charging unconscionable fees; and 

billing for excessive hours spent on tasks that should have taken 

less time, work that was unnecessary and did not benefit 

Esperanza, and work performed for other clients. Esperanza 

further alleged that Garcia frequently absented himself without 

notice to Esperanza or Monica; abandoned Esperanza for a 

vacation two weeks before the scheduled trial date; and conveyed

settlement offers without prior authorization. The crosscomplaint alleged Esperanza had paid $68,286 in fees and costs 

for Garcia Legal’s representation in the 304 Crane litigation, an 

amount that exceeded by more than $10,000 both the actual 

value of the services provided and “the amount which Garcia 

Legal, following the terms of the aforesaid written agreement and 

the California State Bar Rules of Professional Conduct, should 

have billed [Esperanza].” 

Garcia Legal on August 24, 2020 filed a cross-complaint 

against Monica for indemnity. As quoted in the trial court’s 
4

ruling on Monica’s special motion to strike,1 Garcia Legal alleged, 

“[T]o the extent Esperanza contends that [Garcia Legal] was 

billing excessively or performing services that were unnecessary 

or produced no discernable value to her, it was because [Garcia 

Legal] was required to respond to conduct and other actions of 

Monica and Does 11 through 20 that either fell below the 

standard of care, were reckless, or were the sole or primary cause 

of additional fees and costs incurred by Esperanza, as set forth 

above. In undertaking work responsive to and curative of Monica 

and Does 11 through 20’s conduct, or consequences caused or 

contributed by her conduct [Garcia Legal] had no legal obligation 

[to] undertake the work without being paid to do so. . . .

Therefore, to the extent that the court should find that [Garcia 

Legal] bears any responsibility for any of the claims asserted in 

Esperanza’s cross-complaint, Monica and Does 11 through 20, 

and each of them, are required to indemnify and hold [Garcia 

Legal] harmless from these claims. . . .” 

2. Monica’s Special Motion To Strike

On November 30, 2020 Monica moved to strike Garcia 

Legal’s cross-complaint pursuant to section 425.16. Monica 

argued Garcia Legal’s cause of action for indemnity arose from 

(indeed, was based entirely on) Monica’s protected petitioning 

1 We rely on the trial court’s quotation from Garcia Legal’s 

cross-complaint because Monica, now representing herself on 

appeal, without seeking a court order to protect confidential or 

privileged information, included a heavily redacted version of the 

pleading in her appellant’s appendix, disclosing only Garcia 

Legal’s identification of parties and prayer for relief. (See Cal. 

Rules of Court, rule 8.46(c) [“[a] record filed or lodged publicly in 

the trial court and not ordered sealed by that court must not be 

filed under seal in the reviewing court”].) 
5

activity—written and oral statements made in, or in connection 

with, a judicial proceeding (step one of the section 425.16 

analysis). She further asserted the indemnity claim lacked merit

because all her purported misconduct was absolutely protected by 

the litigation privilege in Civil Code section 47, subdivision (b)(2), 

and, in any event, because Esperanza’s claim against Garcia 

Legal was based in contract, not tort, there was no basis for a 

claim of equitable indemnity (step two of the section 425.16 

analysis). Finally, again insisting that Esperanza’s crosscomplaint was a contract action, not one for legal malpractice 

against Garcia Legal, Monica contended cases holding legal 

malpractice actions were not subject to a section 425.16 special 

motion to strike were not applicable to her motion.

In opposition Garcia Legal insisted Esperanza’s crosscomplaint, which sought to recover fees previously paid in the 

304 Crane litigation, although phrased as one for breach of 

contract, alleged Garcia Legal had breached its professional 

obligations as measured by the standard of care owed by 

attorneys and was, for all practical purposes, a claim for 

professional negligence. As such, Garcia Legal argued, its crosscomplaint for indemnity was not subject to a special motion to 

strike under the court of appeal’s analysis in Chodos v. Cole 

(2012) 210 Cal.App.4th 692. Garcia Legal also asserted there 

was a probability it would prevail on the merits of its indemnity 

claim, including a lengthy declaration by Garcia to support this 

argument.2

2 In his declaration, for example, Garcia explained Garcia 

Legal’s representation of Esperanza as Monica’s cocounsel was 

limited to real property issues; Monica remained exclusively 

responsible for prosecuting her mother’s claim for damages. In 
6

The trial court denied the motion, finding Monica had 

failed to carry her burden on the first step of a special motion to 

strike. After quoting from Chodos v. Cole, supra, 

210 Cal.App.4th at pages 702 through 704, the court explained, 

“[T]he anti-SLAPP statute does not apply to claims of attorney 

malpractice and a claim by an attorney against other attorneys 

for equitable indemnity in connection with a claim of attorney 

malpractice is not distinguishable from a client’s claim against an 

attorney for malpractice. Here, while Esperanza does not assert 

a cause of action for legal malpractice against Garcia Legal, her 

theory of liability against Garcia Legal is based on Garcia Legal’s 

negligence . . . .” 

Monica filed a timely notice of appeal.

response to 304 Crane’s motions to compel discovery and for 

discovery sanctions relating to the failure to produce documents 

in connection with Esperanza’s deposition, Garcia Legal drafted 

the portion of the opposition papers relating to real property 

records, while Monica was to prepare the section dealing with 

Esperanza’s medical records. According to Garcia, the draft 

Monica provided him on the day the opposition was due “included 

incomplete citations to cases, citations to cases that had been 

overruled at least in part without noting the subsequent 

treatment, and a reference to statutes that had been repealed 

years before. As a result, [Garcia Legal] had to spend a 

significant amount of time revising and correcting Monica’s 

work.” 

Monica objected to numerous portions of Garcia’s 

declaration. The trial court declined to rule on the objections, 

stating they were immaterial to the court’s disposition of the 

motion. Monica does not challenge that aspect of the trial court’s 

decision. We deny as unnecessary Monica’s motion to augment 

the record to include her objections to Garcia’s declaration.
7

DISCUSSION

1. The Special Motion To Strike: Governing Law and 

Standard of Review

Section 425.16, commonly known as the anti-SLAPP 

statute, makes available a special motion to strike certain 

meritless claims early in the litigation: “A cause of action against 

a person arising from any act of that person in furtherance of the 

person’s right of petition or free speech under the United States 

Constitution or the California Constitution in connection with a 

public issue shall be subject to a special motion to strike, unless 

the court determines that the plaintiff has established that there 

is a probability that the plaintiff will prevail on the claim.” 

(§ 425.16, subd. (b)(1); see Rand Resources, LLC. v. City of Carson 

(2019) 6 Cal.5th 610, 619-620 [“[a] court may strike a cause of 

action only if the cause of action (1) arises from an act in 

furtherance of the right of petition or free speech ‘in connection 

with a public issue,’ and (2) the plaintiff has not established ‘a 

probability’ of prevailing on the claim”].)

Pursuant to section 425.16, subdivision (e), an “‘act in 

furtherance of a person’s right of petition or free speech under the 

United States or California Constitution in connection with a 

public issue’ includes: (1) any written or oral statement or 

writing made before a legislative, executive, or judicial 

proceeding, or any other official proceeding authorized by law, 

(2) any written or oral statement or writing made in connection 

with an issue under consideration or review by a legislative, 

executive, or judicial body, or any other official proceeding 

authorized by law, (3) any written or oral statement or writing 

made in a place open to the public or a public forum in connection 

with an issue of public interest, or (4) any other conduct in 
8

furtherance of the exercise of the constitutional right of petition 

or the constitutional right of free speech in connection with a 

public issue or an issue of public interest.”

In ruling on a special motion to strike under section 425.16, 

the trial court engages in a now-familiar two-step process. “First, 

the defendant must establish that the challenged claim arises 

from activity protected by section 425.16. [Citation.] If the 

defendant makes the required showing, the burden shifts to the 

plaintiff to demonstrate the merit of the claim by establishing a 

probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 

384; accord, Bonni v. St. Joseph Health System (2021) 11 Cal.5th 

995, 1009 (Bonni); Park v. Board of Trustees of California State 

University (2017) 2 Cal.5th 1057, 1061 (Park).) 

“A claim arises from protected activity when that activity 

underlies or forms the basis for the claim.” (Park, supra, 

2 Cal.5th at pp. 1062-1063.) Thus, “[t]he defendant’s first-step 

burden is to identify the activity each challenged claim rests on 

and demonstrate that that activity is protected by the antiSLAPP statute. A ‘claim may be struck only if the speech or 

petitioning activity itself is the wrong complained of, and not just 

evidence of liability or a step leading to some different act for 

which liability is asserted.’” (Wilson v. Cable News Network, Inc. 

(2019) 7 Cal.5th 871, 884 (Wilson); see Bonni, supra, 11 Cal.5th 

at p. 1009 [“[t]he defendant’s burden is to identify what acts each 

challenged claim rests on and to show how those acts are 

protected under a statutorily defined category of protected 

activity”]; Park, at p. 1060.) 

If the moving party fails to demonstrate that any of the 

challenged claims for relief arise from protected activity (the first 

step), the court properly denies the motion to strike without 
9

addressing the probability of success (the second step). (City of 

Cotati v. Cashman (2002) 29 Cal.4th 69, 80-81; Verceles v. 

Los Angeles United School Dist. (2021) 63 Cal.App.5th 776, 784.)

We review de novo whether the moving party carried its 

burden of demonstrating the activity from which the lawsuit 

arises falls within the scope of section 425.16. (Geiser v.

Kuhns (2022) 13 Cal.5th 1238, 1250; see Wilson, supra, 7 Cal.5th 

at p. 884; Park, supra, 2 Cal.5th at p. 1067.)

2. The Special Motion To Strike and Legal Malpractice

Claims

As Monica contends, an attorney’s litigation-related 

activities, including, as pertinent here, the filing and prosecution 

of a civil action on behalf of a client, generally constitute acts in 

furtherance of a person’s constitutional right of petition. (See 

Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [An act in

furtherance of the person’s right of petition or free speech

“includes communicative conduct such as the filing, funding, and

prosecution of a civil action. [Citation.] This includes qualifying

acts committed by attorneys in representing clients in

litigation”]; Optional Capital, Inc. v. Akin Gump Strauss, Hauer

& Feld LLP (2017) 18 Cal.App.5th 95, 113, 226 [“[i]t is well

established that the protection of the anti-SLAPP statute extends

to lawyers and law firms engaged in litigation-related activity”].) 

Nonetheless, a two-decades-long line of cases, including 

this court’s decision in Sprengel v. Zbylut (2015) 241 Cal.App.4th

140, has held “malpractice claims that challenge the competency 

of an attorney’s legal services are not subject to section 425.16 

because, in such cases, ‘the client is not suing because the 

attorney petitioned on his or her behalf, but because the attorney 

did not competently represent the client’s interests while doing 
10

so.’” (Id. at pp. 154-155; accord, Kolar v. Donahue, McIntosh &

Hammerton (2006) 145 Cal.App.4th 1532, 1540; see Yeager v.

Holt (2018) 23 Cal.App.5th 450, 457 [“a typical attorney 

malpractice suit is not subject to” section 425.16]; Robles v.

Chalilpoyil (2010) 181 Cal.App.4th 566, 578-579 [“section 425.16 

does not shield statements made on behalf of a client who alleges 

negligence in the defendant’s representation of the client or 

breach of the duty of loyalty”]; Jespersen v. Zubiate-Beauchamp

(2003) 114 Cal.App.4th 624, 632 [section 425.16 does not apply to 

“garden-variety attorney malpractice” action based on an 

attorney’s failure to comply with discovery statutes and court 

orders].) Despite occasional criticism (see, e.g., Sprengel, at 

p. 158 (dis. opn. of Perluss, P. J.)), neither the Legislature nor the 

Supreme Court has taken any action to disapprove any of these 

cases. They are now a fixed point in anti-SLAPP jurisprudence. 

(See generally People v. Latimer (1993) 5 Cal.4th 1203, 1213

[considerations of stare decisis have special force in the area of 

statutory interpretation because the legislative branch remains 

free to alter what the courts have done].)

Applying the reasoning of these cases, the court in Chodos 

v. Cole, supra, 210 Cal.App.4th 692 concluded that section 425.16

did not apply to a “claim for indemnity [that was] grounded in 

allegations of attorney malpractice.” (Id. at p. 705.) In Chodos

two attorneys sued their former client to recover unpaid fees

incurred representing the client in marital dissolution

proceedings. The client filed a cross-complaint for legal

malpractice. (Id. at pp. 696-697.) The attorneys filed a crosscomplaint for equitable indemnity against other attorneys who

had represented the client. (Id. at p. 697.) The second set of

attorneys filed special motions to strike, which the trial court
11

granted. (Ibid.) Our colleagues in Division Five of this court

reversed. After acknowledging section 425.16 “does not apply to

claims of attorney malpractice,” the Chodos court reasoned that

“[i]ndemnity and malpractice may be different causes of action,

but that does not mean that the claim for indemnification based

on malpractice should be treated differently than a malpractice

claim for purposes of whether [section 425.16] is applicable.”

(Id. at pp. 702-704.)

3. Garcia Legal’s Cross-complaint for Indemnity, Based on

Monica’s Alleged Malpractice, Does Not Arise from

Protected Activity Under Section 425.16

Indemnity “refers to ‘the obligation resting on one party to 

make good a loss or damage another party has incurred.’” (Prince 

v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157.) 

Equitable indemnity, as the name suggests, refers to a liability 

that arises from the equities of a particular circumstance.3 Such

indemnity “‘is premised on a joint legal obligation to another for 

damages,’” “subject to allocation of fault principles and 

comparative equitable apportionment of loss.” (Id. at p. 1158; see 

Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital

(1994) 8 Cal.4th 100, 114 [equitable indemnity “is premised on a

joint legal obligation to another for damages”].) “‘“The elements 

of a cause of action for [equitable] indemnity are (1) a showing of 

fault on the part of the indemnitor and (2) resulting damages to 

the indemnitee for which the indemnitor is . . . equitably 

responsible.”’” (C.W. Howe Partners Inc. v. Mooradian (2019) 

3 While traditionally known as equitable indemnity, more 

recently it has also been referred to as noncontractual implied 

indemnity. (See Prince v. Pacific Gas & Electric Co., supra, 

45 Cal.4th at p. 1157.)
12

43 Cal.App.5th 688, 700; accord, Bailey v. Safeway, Inc. (2011) 

199 Cal.App.4th 206, 217.)

As the Supreme Court instructed in Bonni, supra, 

11 Cal.5th at page 1009, at the first step in analyzing a special 

motion to strike under section 425.16, “courts are to ‘consider the 

elements of the challenged claim and what actions by the 

defendant supply those elements and consequently form the basis 

for liability.’” (Accord, Park, supra, 2 Cal.5th at p. 1063.) Here, 

Monica’s allegedly incompetent actions as Esperanza’s attorney 

before and during the time Garcia Legal also represented 

Esperanza supply the elements and consequently form the basis 

for the claim Monica is obligated to indemnify Garcia Legal. 

That is, the alleged indemnitee (Garcia Legal) contends an 

attorney (Monica, the indemnitor) is responsible (in whole or in 

part) for the damages the attorney’s client (Esperanza) seeks to 

recover from the indemnitee because the indemnitor’s

professional negligence caused those injuries. The indemnity 

cause of action, accordingly, arises from the attorney’s 

professional negligence just as if the attorney’s client had filed a 

legal malpractice cause of action directly against the attorney. 

As the cases excepting legal malpractice lawsuits from the 

ambit of section 425.16 posit, even where the alleged malpractice

occurs during litigation and the claims may have been triggered

by, or associated with, the attorney’s litigation activities, “they do

not arise out of those acts. [Citations.] Instead, they arise out of 

[the attorney’s] breach of professional obligations” (Sprengel v.

Zbylut, supra, 241 Cal.App.4th at p. 155; see Finato v. Keith A.

Fink & Associates (2021) 68 Cal.App.5th 136, 142 [“‘“actions 

based on an attorney’s breach of professional and ethical duties 

owed to a client are not SLAPP suits, even though protected 
13

litigation activity features prominently in the factual 

background”’”]; Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 880

[“the client is seeking recovery for the attorney’s failure to

competently represent the client’s interests and/or the attorney’s

breach of loyalty owed to the client, and not to recover for injuries

resulting from the attorney’s petitioning activities, even if these

activities were alleged to be wrongful and harmful to the client’s

interests”].)

Because Garcia Legal’s indemnity cause of action is based

on Monica’s alleged professional negligence, the trial court

correctly ruled the cause of action does not arise from protected

petitioning activity. Whether section 425.16 applies to an

indemnity claim against an attorney depends on whether the

attorney’s alleged conduct giving rise to his or her fault is

protected activity under section 425.16—not the identity of the

party bringing the indemnity claim. We fully agree with the

court in Chodos v. Cole, which explained, “If an act of malpractice

by an attorney . . . is not petitioning or free speech under

[section 425.16], that same act for the same client should not be

deemed to be such petitioning or free speech solely because it is

the basis of a claim for indemnity by someone other than the

client.” (Chodos v. Cole, supra, 210 Cal.App.4th at p. 705.)

In challenging the trial court’s ruling, Monica does not 

contend Garcia Legal’s cross-complaint for indemnity is based on 

anything other than her own purported legal malpractice while 

representing Esperanza. Instead, without directly addressing (or 

even citing) Chodos v. Cole, supra, 210 Cal.App.4th 692, Monica 

attempts to avoid the holding of that case, as well as the entire 

line of cases articulating the legal malpractice exception to 

section 425.16, by arguing Esperanza’s cross-complaint against 
14

Garcia Legal is for breach of contract and common counts, not for 

legal malpractice. Absent an underlying tort claim against 

Garcia Legal, she contends, Garcia Legal has no basis to seek 

equitable indemnity against Monica. Whatever the merit of that 

argument, which certainly could have been raised by way of 

demurrer, it is not pertinent to the step-one analysis of Monica’s 

special motion to strike. The issue is whether Garcia Legal’s 

indemnity claim against Monica arises from Monica’s protected 

activity, not whether Esperanza’s cross-complaint against Garcia 

Legal is based on contract or tort. For the reasons discussed, the 

indemnity claim is not subject to a special motion to strike.

DISPOSITION

The order denying the special motion to strike is affirmed. 

Garcia Legal’s motion for sanctions is denied. Garcia Legal is to 

recover its costs on appeal.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.