Overlawyered.com's dream lawsuit

Kashian v. Harriman 5/23/02 CA5 A local developer, apparently stung by a local attorney's attempt to instigate an Attorney General's investigation against the developer, sued the attorney for unfair business practices allegedly consisting extorting settlements through filing meritless lawsuits. Although the developer was not a "victim" of the prior settlements, and apparently the alleged victims did not appeal or attempt to rescind the settlements, the developer sued as a member of the public.

Good idea, right? The best defense is a strong offense.

Wrong. The attorney filed a motion under California's Strategic Lawsuit Against Public Participation [SLAPP] on the claim that the developer's lawsuit was designed to chill public participation in matters of public concern. This motion was granted, with costs and attorney's fees, by the Trial Court and affirmed by the Fifth District Court of Appeals. This seems conceptually reassuring. There is something odd about a third party going into another person's lawsuit and essentially saying 'you were wrong - you shouldn't have settled - you had no exposure." It seems like the person in the best position to make that decision is the person making the decision, and a substantial portion of law ranging from the finality of judgments to res judicata requires that assumption.

On the other hand, the Fifth DCA's Opinion appears to focus on the developers lack of evidence supporting his complaint. So, it would seem that if you have enough evidence, you may be able to go and second-guess the settlement decisions of entirely unrelated parties.