On October 21, 2014, the Court of Appeal, Second Appellate District, in Kenne v. Stennis, held that several causes of action, including intentional infliction of emotional distress, conspiracy and malicious prosecution, could be stricken when the conduct upon which these claims was based is protected by the litigation privilege.
This action arose out of a separate civil case by Plaintiff to recover a debt from Defendant. Plaintiff was faced with having to attempt service of process on her own after numerous attempts by the Sherriff’s Department resulted in a determination that Defendant was evading service. Shortly after an incident between Plaintiff and Defendant’s wife during a service attempt, Defendant’s wife filed a civil harassment petition seeking a temporary restraining order (“TRO”) and preliminary injunction. In essence, the TRO action was intended to prevent Plaintiff ‘s collection efforts, including the service of a judgment debtor examination subpoena and order.
Based on numerous fraudulent representations contained in the papers in support of the TRO and injunction requests, the trial court issued the TRO against Plaintiff. The trial court held an evidentiary hearing and at the conclusion, dissolved the TRO, denied the request for a preliminary injunction and dismissed the civil harassment action, awarding Plaintiff her costs. Within a month, Defendant’s wife filed a second civil harassment petition and request for a TRO. The petition was based on the same alleged facts as before, and was denied summarily with the action being dismissed.
Thereafter, Plaintiff filed an action against Defendant and his wife. In support of her causes of action for conspiracy, malicious prosecution, and abuse of process, libel per se, slander per se, and intentional infliction of emotional distress, Plaintiff alleged that Defendants conspired to avoid her lawful collection efforts by filing false police reports, filing malicious petitions for civil harassment, making false and detrimental statements to the courts in the TRO actions, and wrongfully obtaining a TRO against Plaintiff. According to Plaintiff, the false and abusive police reports, civil harassment petitions, and requests for TRO’s lacked merit and were filed without probable cause.
Defendants filed a Code of Civil Procedure section 425.16 special motion to strike Plaintiff’s first amended complaint. Following briefing, the trial court held a hearing on the motion and issued an order denying the motion as to the conspiracy, malicious prosecution, and intentional infliction of emotional distress causes of action, and granting as to the abuse of process, libel and slander causes of action. Defendant and his wife appealed from the trial court’s order denying, in part, their anti-SLAPP motion, special motion to strike, and Plaintiff cross-appealed the trial court’s order granting, in part, Defendants’ special motion to strike.
In review, the Court of Appeal analyzed Code of Civil Procedure section 425.16, commonly referred to as the Anti-SLAPP statute. That section provides that a cause of action arising from a defendant’s conduct in furtherance of constitutionally protected rights of free speech or petitioning may be stricken unless the plaintiff has probability of prevailing on merits. In ruling on a special motion to strike, the court utilizes a two-prong analysis, (1) determining whether defendant has made a threshold showing that the challenged cause of action is one arising from the protected activity and if so, (2) whether the plaintiff has demonstrated a probability of prevailing on the claim.
In order to satisfy the second prong, plaintiff must demonstrate that the complaint is legally sufficient and supported by a prime facie showing of facts to support a favorable judgment if the evidence submitted by the plaintiff is accepted. Because the court is required to determine the legal sufficiency of plaintiff’s complaint under the second prong of the Anti-SLAPP analysis, certain privileges may come into play and bar certain causes of action. Civil Code section 47 (b) provides that publications or broadcasts made during any legislative, judicial or other proceeding authorized by law, or in the initiation or course of the proceeding authorized by law may be privileged. This privilege is relevant in the second step of the Anti-SLAPP analysis as it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.
In Kenne, Plaintiff conceded that each of her six causes of action were based on the same alleged conduct by Defendants. All of that conduct, however, was in furtherance of Defendants’ constitutional right of petition, a protected activity under section 425.16. Under established authority, when a cause of action is based on both protected and unprotected activity, it is subject to the Anti-SLAPP statute, unless the protected activity is merely incident to the unprotected conduct.
The Court of Appeal held that the trial court erred when it denied the special motion to strike as to the conspiracy, malicious prosecution, and intentional infliction of emotional distress causes of action because the conduct underlying those claims was protected activity under the Anti-SLAPP statute. Plaintiff could not prevail on the merits where her malicious prosecution claim was based on the filing of a petition under section 527.6 and the conduct underlying Plaintiff’s other tort claims was privileged under Civil Code section 47, subdivision (b). On cross-appeal, the Court also held that the trial court did not err in granting the special motion to strike as to the abuse of process, libel, and slander causes of action because those claims arose from protected activity, and Plaintiff could not prevail, as a matter of law, as they were barred by the litigation privilege in Civil Code section 47, subdivision (b).
This case provides Defendant a shield to causes of action which rely on conduct, even seemingly egregious conduct, that is protected by the litigation privilege.
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