Opinion
A119826
6-26-2008
RAINER J. FAERBER, Plaintiff and Appellant, v. ROBERT SCHROTH et al., Defendants and Respondents.
Not to be Published
Appellant Rainer J. Faerber appeals from the order granting attorney Robert Schroth and Winters, Schroth & Kings (hereafter referred to as respondents) special motion to strike under Code of Civil Procedure section 425.16 (hereafter section 425.16). Section 425.16 sets out a procedure for striking complaints in lawsuits that are commonly known as "SLAPP" suits (strategic lawsuits against public participation). Appellant contends that the trial court erred in finding that the right to petition and the right to freedom of speech under section 425.16 applies to knowingly making a false accusation of sexual abuse of a minor in a family law proceeding. He also contends that the trial court erred in finding that his underlying cause of action against respondents for intentional infliction of emotional distress lacks merit. We disagree with appellant and affirm the order.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
On August 21, 2007, appellant filed a complaint for personal injury against respondents alleging that they had "prepared and filed a knowingly false accusaion [sic] of child abuse in order to gain custody of [appellants] minor son." The complaint further alleges that respondents "knew as of April 9, 2007, that said allegation filed by Barbara S. Faerber [appellants former wife] with the Solano County Child Protective Services was totally false and unfounded and irrespective still proceeded to make said allegation in violation of Family Law Code Section 3027.1 which was done to gain unfair advantage in a child custody matter . . . ." The complaint characterizes respondents conduct as "outrageous" and done "with the intent to cause severe emotional distress" to appellant.
Respondents filed a motion to strike pursuant to section 425.16. In their moving papers, they stated that appellants complaint was based on a declaration that Barbara had prepared for a child custody hearing. Respondents represent Barbara, and filed the declaration in her and appellants marital dissolution and child custody proceeding in Solano County Superior Court. Respondents asserted that the filing of Barbaras declaration is covered by the absolute litigation privilege under Civil Code section 47, subdivision (b), and similarly constitutes a protected activity under section 425.16, subdivision (e)(2).
We refer to Barbara by her first name for the sake of clarity.
On October 10, 2007, the trial court issued its order granting the motion to strike. This appeal followed.
DISCUSSION
I. Section 425.16 and the Standard of Review
Section 425.16, known as the anti-SLAPP statute, provides: "A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or 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).) "The phrase `arising from . . . has been interpreted to mean that `the act underlying the plaintiffs cause or `the act which forms the basis for the plaintiffs cause of action must have been an act in furtherance of the right of petition or free speech. [Citations.]" (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1001.) "The goal [of section 425.16] is to eliminate meritless or retaliatory litigation at an early stage of the proceedings." (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 806.)
Courts engage in a two-step process in determining whether a cause of action is subject to a special motion to strike under section 425.16. First, the court determines if the challenged cause of action arises from protected activity. If the defendant makes such a showing, the burden shifts to the plaintiff to establish, with admissible evidence, a reasonable probability of prevailing on the merits. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute." (Id. at p. 89, italics in original.)
A ruling on a section 425.16 motion is reviewed de novo. (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645.) We review the record independently to determine whether the asserted cause of action arises from activity protected under the statute and, if so, whether the plaintiff has shown a probability of prevailing on the merits. (ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th 993, 999; Seelig v. Infinity Broadcasting Corp., supra, 97 Cal.App.4th 798, 807.)
II. Respondents Conduct Qualifies as Protected Activity
Appellant contends section 425.16 does not apply to the act of filing a document containing false allegations of child abuse in order to obtain an advantage in a child custody proceeding. Respondents counter that the filing of Barbaras declaration was "an exercise of their clients rights to use the judicial process" and therefore is protected under section 425.16 and is absolutely privileged under Civil Code section 47, subdivision (b). We agree.
Section 425.16, subdivision (e), defines an " `act in furtherance of a persons right of petition or free speech . . . in connection with a public issue " to include "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." (§ 425.16, subd. (e)(2).) Statements made during an official proceeding or in anticipation of such a proceeding are protected if they have some "connection or logical relation" to the proceeding. (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg).) Courts are required to interpret section 425.16 broadly in favor of protecting legitimate exercises of free speech and the right to petition. (§ 425.16, subd. (a).)
As respondents filed Barbaras declaration in the context of an ongoing custody dispute, there is no question that the document had a "connection or logical relation" to the underlying family law proceeding. Appellant does not contend that Barbaras declaration fails to qualify as a writing made in connection with an issue under consideration in the dissolution proceeding. Instead, he argues that Family Code section 3027.1 mandates the conclusion that false allegations of child abuse are never protected by Code of Civil Procedure section 425.16 or by the litigation privilege.
Family Code section 3027.1 provides: "(a) If a court determines . . . that an accusation of child abuse or neglect made during a child custody proceeding is false and the person making the accusation knew it to be false at the time the accusation was made, the court may impose reasonable money sanctions, not to exceed all costs incurred by the party accused as a direct result of defending the accusation, and reasonable attorneys fees incurred in recovering the sanctions, against the person making the accusation. For the purposes of this section, `person includes a witness, a party, or a partys attorney. [¶] (b) On motion by any person requesting sanctions under this section, the court shall issue its order to show cause why the requested sanctions should not be imposed. The order to show cause shall be served on the person against whom the sanctions are sought and a hearing thereon shall be scheduled by the court to be conducted at least 15 days after the order is served. [¶] (c) The remedy provided by this section is in addition to any other remedy provided by law."
"In an effort to discourage false accusations of child abuse during custody litigation, the Legislature enacted Family Code section 3027.1. Section 3027.1 allows the court to impose monetary sanctions against a witness, party, or partys attorney who knowingly makes such a false allegation." (In re Marriage of Dupre (2005) 127 Cal.App.4th 1517, 1520, fn. omitted.) Appellant argues that the legislative history of this section proves that the Legislature intended to abrogate the litigation privilege in circumstances like those presented here. We granted appellants request for judicial notice of the legislative history of section 3027.1.
We first observe that legislative history is not determinative where the language of a statute is clear on its face. "[W]hen construing a statute, a courts duty is ` "simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted . . . ." [Citation.] If there is no ambiguity about the meaning of the language, we must apply the provision according to its terms without further judicial construction. When the language is clear on its face, we may not consider extrinsic evidence to determine the intent of the Legislature. If the language is clear, we follow that plain meaning." (In re Marriage of Dupre, supra, 127 Cal.App.4th 1517, 1525-1526.)
Family Code section 3027.1 does not contain any references to the anti-SLAPP law. Nor does it contain any explicit references to the litigation privilege under Civil Code section 47, subdivision (b). The relief offered to an aggrieved party under this section is limited to sanctions for the reasonable costs incurred by the party "as a direct result of defending the [false] accusation, and reasonable attorneys fees incurred in recovering the sanctions, against the person making the accusation." (Fam. Code, § 3027.1, subd. (a), italics added.) Thus, the application of this section is limited to the child custody proceeding wherein the false allegation is introduced. Moreover, as interpreted by this court in a prior decision, this Family Code provision does not operate to otherwise defeat the litigation privilege.
In Begier v. Strom (1996) 46 Cal.App.4th 877, this court held that the privilege for statements made in a judicial proceeding did not bar a cause of action for intentional infliction of emotional distress based on a wifes conduct of filing a police report falsely alleging that the husband had molested his young daughter. While we found the act of filing a police report was not protected, we observed there was "little doubt . . . that insofar as plaintiff alleges defendant made false accusations within the dissolution action, defendants statements are privileged and cannot give rise to a cause of action for intentional infliction of emotional distress." (Id. at p. 882.) Appellant claims that this aspect of Begier was wrongly decided. We are not persuaded.
Appellant claims, without explanation, that the case of In re Marriage of Dupre, supra, is contrary to our decision in Begier. That case held that section 3027.1 does not require the falsity of the abuse allegation to be established during the child custody proceeding itself. (In re Marriage of Dupre, supra, 127 Cal.App.4th 1517, 1527.) We have reviewed the opinion and do not see how it contradicts our earlier decision.
In the first place, the legislative history cited to by appellant does not help his case. In particular, after acknowledging the broad scope of the litigation privilege, including the exception carved out for malicious prosecution actions, the Senate Committee report includes the following statement: "This bill would add one more exception to the exceptions to the absolute immunity in existing law; under this bill, reasonable money sanctions and reasonable attorneys fees could be imposed against a person making an accusation of child abuse or neglect during a child custody proceeding, if the accusation was false and known to be false at the time the accusation was made." (Sen. Com. on Judiciary, Rep. on Assem. Bill No. 3546 as amended May 16, 1990 (1989-1990 Reg. Sess.) p. 2, italics added.) The italicized language clearly limits the scope of the exception to the sanctions and attorney fees that are allowed by section 3027.1 itself. The statement falls far short of categorically eliminating the litigation privilege in all contexts with respect to false allegations of child abuse. Thus, there is no indication that the Legislature intended to allow aggrieved persons to file derivative tort lawsuits based on the making of false child abuse allegations in a child custody proceeding.
Moreover, had the Legislature wanted to make this exception broader it could easily have done so by amending Civil Code section 47, subdivision (b). We note that there are currently four statutory exceptions in this subdivision, including one that applies in the context of divorce proceedings. That exception does not contain any reference to the filing of false allegations of child abuse.
Civil Code section 47, subdivision (b)(1), provides: "An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action."
Appellant also makes much of the language of Family Code section 3027.1, subdivision (c), which states that the remedies provided for are in addition to "any other remedy provided by law." Appellant apparently reads this exception to include the remedy that could potentially be obtained by filing an independent legal action. Such an interpretation is unwarranted as it would effectively override both Code of Civil Procedure section 425.16 and Civil Code section 47, subdivision (b).
Simply put, derivative tort lawsuits based on conduct that is otherwise protected by the litigation privilege are not "remedies provided by law." Instead, proper remedies that could fall within this definition might include sanctions for other types of procedural misconduct, such as discovery abuses and frivolous filings. In fact, the legislative history of Family Code section 3027.1 notes that existing law "also authorizes sanctions (1) for failure to comply with the Civil Discovery Act of 1986; [and] (2) for the filing of bad faith actions or pursuing frivolous or delaying tactics." (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 3546 as amended May 16, 1990 (1989-1990 Reg. Sess.) p. 2.) This history also notes that the law authorizes the imposition of sanctions "based on the extent to which the conduct of each party and the attorney frustrates the policy of law to promote settlement of litigation" and "for failure to comply with a court order." (Ibid.)
In sum, Family Code section 3027.1 does not override the litigation privilege except insofar as it allows for the recovery of sanctions and attorney fees following a successful motion brought under that provision. Because respondents submitted Barbaras declaration to the family court in connection with an issue under its consideration, their conduct is protected under Code of Civil Procedure section 425.16, subdivision (e)(2).
III. Appellants Lawsuit Lacks Merit
Once a finding is made that a plaintiffs lawsuit arises out of the defendants rights to freedom of speech or to petition, the burden shifts to the plaintiff to prove that the lawsuit has merit. "The burden on the plaintiff is similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment." (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.) The plaintiff need only establish the challenged cause of action has "minimal merit." (Navellier v. Sletten, supra, 29 Cal.4th 82, 93-94.) If it is clear that the plaintiff cannot prove an element of the cause of action or that the claim would be barred by an affirmative defense, then the lawsuit will be found to be lacking in merit: "Generally, a defendant may defeat a cause of action by showing the plaintiff cannot establish an element of its cause of action or by showing there is a complete defense to the cause of action . . . ." (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 676, italics in original.)
In showing that a claim has merit, a plaintiff " `must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. [Citations.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendants evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim." (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)
"The elements of . . . the tort of intentional infliction of emotional distress are: (1) outrageous conduct by the defendant; (2) the defendants intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiffs suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendants outrageous conduct." (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 394.) It must also appear that the defendants conduct was unprivileged. (Ibid.)
As discussed above, respondents conduct is protected by the litigation privilege under Civil Code section 47, subdivision (b), which provides, in part, that: "[a] privileged publication or broadcast is one made . . . [¶] (b) in any . . . judicial proceeding . . . [or] in any other official proceeding authorized by law . . . ." While the litigation privilege can be invoked to prove that a defendants conduct is protected by section 425.16, subdivision (b)(2), the privilege "is also relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing." (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) " `Civil Code section 47, subdivision 2 [now subdivision (b)], provides an absolute privilege for a publication in any judicial proceedings. Neither actual malice or falsehood will defeat the privilege so long as the statement has any reasonable connection with a legal action and is made in furtherance of the litigation. . . . [Citations.]" (Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1270, italics added.) " `[T]he statutory privilege accorded to statements made in judicial proceedings . . . applies to virtually all other causes of action, with the exception of an action for malicious prosecution. [Citation.] Thus, the privilege will defeat claims of invasion of privacy [citations] and intentional infliction of emotional distress. [Citation.] [Citation.]" (Ibid., italics added.)
The communication at issue in this case immediately satisfies the requirements for the absolute privilege to apply, which have been summarized as follows: the statement is "(1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action." (Silberg, supra, 50 Cal.3d 205, 212; see Green v. Uccelli (1989) 207 Cal.App.3d 1112, 1124; Carney v. Rotkin, Schmerin & McIntyre (1988) 206 Cal.App.3d 1513, 1521.)
In Silberg, the Supreme Court held that the litigation privilege is absolute, overruling a line of appellate court cases that had applied an "interest of justice" exception to the privilege. The facts of that case concerned a father who, similarly to appellant, brought a derivative lawsuit against his former wifes counsel, alleging that the attorney had engaged in wrongful conduct in arranging for a biased family psychological evaluation, which lead to an adverse result with respect to the fathers visitation rights. (Silberg, supra, 50 Cal.3d 205, 210-211.)
The court in Silberg observed that the principal purpose of the litigation privilege "is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions." (Silberg, supra, 50 Cal.3d 205, 213.) Important policies advanced by the privilege include: "encouraging `open channels of communication and the presentation of evidence in judicial proceedings," (ibid.) "encouraging attorneys to zealously protect their clients interests," and "plac[ing] upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result." (Id. at p. 214.)
Again, appellant claims that Family Code section 3027. 1 creates an exception to the litigation privilege. As we explained above, while we agree that the Legislature did intend to create an exception to the privilege, this exception is limited to allowing for the sanctions authorized by that provision. We see no indication in the language of the statute or in the legislative history cited to by appellant to suggest that the Legislature intended to allow aggrieved parties to maintain derivative civil law actions. Nor do we find that the circumstances of this case justify overriding the salutary policies served by the absolute privilege.
Finally, we do not intend to suggest that we condone the use of false declarations in any legal proceeding. Our Supreme Court in Silberg, recognized the unfairness created by use of intentional misrepresentations but observed that "the evils inherent in permitting derivative tort actions based on communications during the trial of a previous action are . . . far more destructive to the administration of justice than an occasional `unfair result." (Silberg, supra, 50 Cal.3d 205, 213.) We also note that our holding does not leave appellant without a remedy. He may seek sanctions under Family Code section 3027.1 and otherwise pursue any available remedies within the family law proceeding itself.
Appellant filed an appeal of the custody and visitation order in the family law proceeding (A120039). That appeal was dismissed on April 28, 2008.
DISPOSITION
The order is affirmed.
We concur:
Marchiano, P. J.
Stein, J.