Sprengel v. Zbylut

JEAN E. SPRENGEL,

Plaintiff and Respondent,

v.

GREGORY A. ZBYLUT, et al.,

Defendants and Appellants.

No. B256761

(Los Angeles County

Super. Ct. No. BC535584)

California Courts of Appeal

Second Appellate District

Division Seven

Filed October 29, 2015

ORDER MODIFYING OPINION

(NO  CHANGE IN JUDGMENT)

THE COURT:

     IT IS ORDERED that the opinion filed herein on October 13, 2015, be modified as follows: 

1. On page 18, after the period at the end of the last full sentence reading ?Although the defendants may ultimately defeat Sprengel?s claims by proving the absence of an attorney-client relationship, that does not alter the substance of her claims.?,  footnote 7 shall be added that states: 

Defendants contend that, in this particular case, we may reject Sprengel?s claim of an implied attorney-client relationship under the first prong of the section 425.16 test because:  (1) the undisputed evidence shows they ?were hired only to represent the LLC [Purposeful Press],? not Sprengel; and (2) under ?settled,? ?black letter law,? an attorney for an LLC owes no professional duties to the LLC?s individual members.  Even if we were to assume that defendants? evidence established they were properly retained to represent the LLC only (a fact Sprengel disputes), defendants have cited no authority holding that an attorney for an LLC has no obligations to the LLC?s individual members.  Instead, defendants rely solely on cases holding that an attorney for a corporation generally does not represent the corporation?s officers or shareholders in their individual capacities.  (See ante, at p. 17 & fn. 6.)  Our courts have applied a different rule in the context of partnerships, explaining that a five-part factual inquiry is used to ?determine whether in a particular case the partnership attorney has established an attorney-client relationship with the individual partners.?  (Johnson v. Superior Court (1995) 38 Cal.App.4th 463, 479; see also Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1732 [rejecting ?bright line rule that a partnership attorney may never have a duty of loyalty to individual partners?]; see Wortham & Van Liew v. Superior Court (1987) 188 Cal.App.3d 927, 933 [attorney for partnership also represents partners in matters of partnership business].)  Defendants have not identified any decision addressing whether the rules governing the representation of corporations, rather than those governing the representation of partnerships, apply in the context of an LLC (in this case, a two-member LLC).  To the extent the partnership rules were found to apply, a factual inquiry would be necessary to determine what duties (if any) the defendants owed to the LLC?s members, including Sprengel.  Thus, based on the arguments and evidence presented in their briefs, defendants have not ?conclusively? negated the possibility of an attorney-client relationship between themselves and Sprengel; it would therefore be improper to resolve that issue under the first prong of the anti-SLAPP statute test.  (Cf. Flatley v. Mauro (2006) 39 Cal.4th 299, 311 [under first prong analysis, section 425.16 is inapplicable in ?rare cases where the defendant?s assertedly protected speech or petitioning activity is conclusively demonstrated to have been illegal as a matter of law?; in the absence of such a showing, ?any claimed illegitimacy of the defendant?s conduct must be resolved [under the second prong of the section 425.16 test]?].) 

2. On pages 18 and 19, the footnotes numbered 7 and 8 shall be renumbered as footnotes 8 and 9.  

The foregoing does not affect a change in the judgment. 

ZELON J.,                                                                                                      

SEGAL, J.

Appellants? petition for rehearing is denied.

PERLUSS, P. J.,                                   

ZELON, J.,                                       

SEGAL, J.