Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC433494, David L. Minning, Judge.
Richard Lubetzky for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Alberto L. Gonzalez, Assistant Attorney General, Kristin G. Hogue and David F. Taglienti, Deputy Attorneys General, for Defendant and Respondent.
ALDRICH, J.
Appellant Robert Webster challenges the trial court’s order granting the California Attorney General’s (Attorney General) special motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16 [hereafter section 425.16]) and the order awarding fees and costs. The special motion to strike was a response to Webster’s complaint for invasion of privacy and a violation of the Information Practices Act of 1977 (IPA) (Civ. Code, § 1798 et seq.) based upon the Attorney General’s disclosure of Webster’s parole report. The parole report was filed as an exhibit to a judgment on the pleadings in a negligence action Webster filed against the California Department of Corrections (the Department) because his car was stolen from the Department’s parking lot. The parole report stated that Webster had been taken into custody for a parole violation, which explained why his car remained in the parking lot.
SLAPP is an acronym for “strategic lawsuit against public participation.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) “In 1992, the Legislature, finding there had been ‘a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances’ (Code Civ. Proc., § 425.16, subd. (a)), enacted Code of Civil Procedure section 425.16... to provide a remedy against such lawsuits.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 815, fn. 1.)
We affirm the trial court’s order granting the special motion to strike. The Attorney General was involved in petitioning activity within the meaning of section 425.16. Thereafter, Webster failed to meet his burden to demonstrate a probability of success on his privacy claims because the litigation privilege (Civ. Code, § 47, subd. (b)) is a complete defense. In addition, Webster failed to show that the trial court abused its discretion in awarding the Attorney General fees and costs.
BACKGROUND
On March 10, 2008, Webster was on his way to a meeting with his parole agent and parked his car in the lot at the South Central District office in Los Angeles. Webster was taken into custody for an alleged parole violation. Webster alleged the Department agreed to secure his car until he could make arrangements for the car to be removed from the parking lot.
Almost four months later, on July 14, 2008, a parole officer contacted Webster’s attorney and told him that Webster’s car needed to be removed from the parking lot by July 18, 2008. One day after this notification, Webster’s attorney went to the parking lot and discovered that Webster’s car had been stolen. Webster sued the Department for negligence, seeking damages for the loss of his car.
1. The Department Discloses Webster’s Parole Report in a Motion for Judgment on the Pleadings to Dismiss the Negligence Lawsuit
In response to Webster’s lawsuit, the Department moved to dismiss the complaint by filing a judgment on the pleadings. In the reply brief, deputy attorney general Mark Santa Romana disclosed why Webster was taken into custody; he allegedly committed a battery in violation of Penal Code section 451. Webster and his roommate were involved in a domestic altercation. The reply brief discusses details of this domestic incident, quotes from the Department’s records, and attaches a copy of the parole report, which included a confidential declaration from Webster’s roommate/victim.
Webster objected to the introduction of the parole report and attempts to raise on appeal that it was improper for the trial court to consider the parole report when ruling on a judgment on the pleadings. (See Code Civ. Proc., § 438, subd. (d).) The record does not include the trial court’s ruling on the judgment on the pleadings or the status of Webster v. California Department of Corrections and Rehabilitation (Super. Ct. L.A. County, 2010, No. 09K08809). The judgment on the pleadings is not at issue in this appeal.
2. Webster’s Lawsuit for Invasion of Privacy Arising from the Disclosure of his Parole Report is Dismissed under the Anti-SLAPP Statute
Webster filed this lawsuit, alleging invasion of privacy and a violation of Civil Code section 1798.24, based upon the unlawful disclosure of confidential parole board and Department records. He alleged that the disclosure of personal information was unlawful because Civil Code section 1798.24 prohibits an agency from disclosing “any personal information in a manner that would link the information disclosed to the individual to whom it pertains, unless the information is... disclosed” pursuant to the statute.
The Attorney General filed a special motion to strike under section 425.16, which included a request for judicial notice of the motion for judgment on the pleadings, the opposition, and the reply brief with the attached parole report. In the motion to strike, the Attorney General contended, among other things, that Webster could not establish a probability of prevailing on the merits because the complaint was barred by the litigation privilege (Civ. Code, § 47, subds. (a) & (b)), the common-interest privilege (Civ. Code, § 47, subd. (c)), and the Attorney General was immune from suit under Government Code sections 821.6 and 815.2, subdivision (b). The trial court granted the motion, concluding the filing of the reply brief was a privileged communication (Civ. Code, § 47, subd. (b)). Since the litigation privilege protected Santa Romana’s conduct, the Attorney General also was immune from liability under Government Code section 815.2, subdivision (b). The trial court awarded attorney fees under the statute to the Attorney General in the amount of $4,335. This timely appeal challenging the ruling on the special motion to strike and on the fees award followed.
The request was granted over Webster’s objections.
The trial court rejected immunity under Government Code section 821.6.
DISCUSSION
The analysis of an anti-SLAPP motion brought pursuant to section 425.16 involves two steps. Section 425.16, subdivision (b)(1) states: “A cause of action against a person arising from any act... 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.” First, the court decides whether the defendant has made the threshold showing that the challenged action is one “arising from” the protected activity. (§ 425.16, subd. (b)(1).) Second, if the court finds the showing has been made, then “it must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76; Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) We independently review an order granting a motion to strike under section 425.16. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
A governmental entity that acts through its representatives is a “person” within the meaning of the statute and may seek dismissal of an action under section 425.16. (Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1114-1115.)
1. The Attorney General’s Reply Brief is Protected Activity
The Attorney General has made the necessary showing that the reply brief filed in Webster’s civil action for damages against the Department is based upon the exercise of the constitutional right in connection with a public issue. Subdivision (e) of section 425.16 defines the phrase “ ‘act in furtherance of a person’s right of... free speech... in connection with a public issue’ ” to include “any written or oral statement or writing made before a... judicial proceeding... or... made in connection with an issue under consideration or review by a... judicial body....” (§ 425.16, subd. (e).) “Under the plain language of section 425.16, subdivision (e)(1) and (2), as well as the case law interpreting those provisions, all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute. [Citations.]” (Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480.)
We reject Webster’s argument that defense of a lawsuit is not an act in furtherance of a right to petition. Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, does not so hold. In Kajima Engineering and Construction v. City of Los Angeles, the court held that a city’s cross-complaint for unfair business practices in response to Kajima Engineering’s suit for breach of contract was not subject to a special motion to strike because the cross-complaint did not arise from Kajima Engineering’s petitioning activity in suing the city, but rather from acts during the procurement and execution of the contract at issue. (Id. at p. 929-930.)
Webster also appears to argue that because the Attorney General’s disclosure of personal information violated the IPA, the Attorney General exceeded the boundaries of protected activity. There is a limited exclusion if the “defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law[.]” (Flatley v. Mauro (2006) 39 Cal.4th 299, 320.) This exclusion has been applied in the context of criminal extortion, conduct not protected by the federal and state constitutional speech and petition guarantees. (Id. at pp. 316-318, 328-329.) But, the exclusion did not apply in Cabral v. Martins, supra, 177 Cal.App.4th at page 481, where the attorney allegedly helped his client violate the child support evasion statutes, or in G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 616, where the attorney filed a postdissolution motion and violated a court rule by submitting a credit report containing the parties’ personal information. In both cases, the evidence did not conclusively establish the protected speech was illegal as a matter of law.
As these cases indicate, the limited exclusion does not apply to the claims alleged in the complaint. The Attorney General has established the challenged cause of action arose from protected activity. The burden shifted to Webster to demonstrate the probability of prevailing on his claim.
2. The Litigation Privilege Bars this Action
To satisfy the second step, “a plaintiff responding to an anti-SLAPP motion must ‘ “state[] and substantiate[] a legally sufficient claim.” ’ [Citations.]” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) “We consider ‘the pleadings, and supporting and opposing affidavits... upon which the liability or defense is based.’ ” (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 269, fn.3; see also § 425.16, subd. (b)(2).) We do not weigh credibility or compare the weight of the evidence. Instead, we accept as true the evidence favorable to Webster and evaluate the Attorney General’s evidence only to determine if it has defeated the evidence submitted by Webster as a matter of law. (Soukup v. Law Offices of Herbert Hafif, supra, at p. 269, fn. 3.)
The litigation privilege (Civ. Code, § 47, subd. (b)) bars all tort causes of action except malicious prosecution, and specifically applies to a cause of action for invasion of privacy whether labeled a constitutional, common law, or statutory right. (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 962.) The litigation privilege applies to any communication “(1) made in a judicial or quasi-judicial proceeding; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The privilege applies to communications relative to the defense of an action. (California Physicians’ Service v. Superior Court (1992) 9 Cal.App.4th 1321, 1330.)
Civil Code section 47, subdivision (b) provides in relevant part: “A privileged publication or broadcast is one made: [¶]... [¶] [i]n any... judicial proceeding[.]”
We are concerned here with the third and fourth requirements of the litigation privilege. “The requirement that the communication be in furtherance of the objects of the litigation is, in essence, simply part of the requirement that the communication be connected with, or have some logical relation to, the action, i.e., that it not be extraneous to the action....” (Silberg v. Anderson, supra, 50 Cal.3d at pp. 219-220.) In other words, the communication must have some reasonable relevancy to the subject matter of the action. (Id. at p. 220.) The Supreme Court has specifically disapproved any interpretation of the “furtherance” requirement as a test of the motives, morals, ethics, or intent of the person claiming the privilege. (Ibid.; see also Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1141.)
The Attorney General’s reply brief satisfies the object of the litigation, that is, to defend against Webster’s negligence lawsuit. (See Rothman v. Jackson, supra, 49 Cal.App.4th at p. 1148.) The inclusion of the parole report in the motion for judgment on the pleadings was relevant to the objective. Webster claimed a duty arose from a special relationship between him and his parole officer to secure his car. The parole report, while not addressing that agreement, explained why the car remained in the parking lot and was reasonably relevant to the defense of the negligence action.
Relying on Nguyen v. Proton Technology Corp. (1999) 69 Cal.App.4th 140, Webster contends that the parole report was not reasonably relevant to the issue of duty, the sole issue in his civil litigation arising from his stolen car. His reliance is misplaced. Nguyen v. Proton Technology Corp., held the litigation privilege did not apply to a prelitigation demand letter referring to Nguyen’s criminal record because there was no “connection” between his criminal record and the civil unfair competition lawsuit. (Id. at p. 151.) As stated, the circumstances surrounding why Webster’s car remained in the Department’s parking lot are “connected” to Webster’s lawsuit and are relevant to the defense that the Department had no duty to secure his car. The Attorney General does not attempt to make any further connection, and unlike Nguyen, does not attempt to use the parole report to impugn Webster’s character. (Id. at pp. 151-152.) The communication need not be directly relevant, just reasonably relevant.
We reach the same conclusion under what Webster describes as the “functional test, ” we employed in Rothman v. Jackson, supra, 49 Cal.App.4th at page 1148. As we stated in that case, in order for the communication to satisfy the furtherance requirement of the litigation privilege, the communication must function intrinsically to advance a litigant’s case. The reply brief advanced the defense that the Department owed no duty to Webster to secure his car while he remained in custody.
We decline Webster’s request to create an exception to the litigation privilege for communications in the course of judicial proceedings that might otherwise violate the IPA. The IPA prevents disclosure of certain personal and confidential information. (Civ. Code, § 1798.24.) The IPA is a legislative endorsement of the constitutional right to privacy in one’s personal information. (See Civ. Code, §§ 1798.1; 1798.73 [“Nothing in this chapter shall be construed to deny or limit any right of privacy arising under Section 1 of Article 1 of the California Constitution”].) That right is not absolute. As the California Supreme Court stated in Jacob B. v. County of Shasta, supra, 40 Cal.4th at page 961, the litigation privilege bars a privacy cause of action based upon the California Constitution as well as one based on common law or statute.
Civil Code section 1798.30 authorizes each agency to adopt regulations to implement what the Legislature referred to as the right to privacy. (See Civ. Code, § 1798.1.) In his opening brief, Webster cites and attaches a regulation that limits the dissemination of parolee field files. (Cal. Code Regs., tit. 15, § 3640, subd. (f).) Webster has not previously raised this argument. Nevertheless, this regulation permits the Department to release these files to the Office of the Attorney General.
We also do not read Civil Code section 1798.70 of the IPA as creating a statutory exception to the litigation privilege. Civil Code section 1798.70 does not state the IPA supersedes any other state law. The statutory provision contains qualifying language omitted from Webster’s analysis and argument. Civil Code section 1798.70 states in full: “This chapter shall be construed to supersede any other provision of state law, including Section 6253.5 of the Government Code, or any exemption in Section 6254 or 6255 of the Government Code, which authorizes any agency to withhold from an individual any record containing personal information which is otherwise accessible under the provisions of this chapter.” This provision makes the IPA disclosure laws applicable to statutes that previously limited disclosure.
Government Code section 6253.5 refers to the examination of petitions for reorganization of school districts and community college districts. Government Code sections 6254 and 6255 list exemptions to disclosure of certain government records.
We find no other basis to conclude a violation of the IPA is an exception to the litigation privilege. “Exceptions to the litigation privilege have been recognized under statutes that (1) are ‘more specific’ than the privilege, and (2) would be ‘significantly or wholly inoperable’ if the privilege applied. [Citation.]” (Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 339.) Applying this test, the litigation privilege would not vitiate the IPA. The IPA provision at issue here is a notice provision to enable a party to obtain a protective order, seal the records, or obtain other protections to control the dissemination of his or her personal information. (Civ. Code, § 1798.24, subd. (k).) Webster had alternative remedies, other than a civil action, including having the parole report sealed. We share the view of the court in G.R. v. Intelligator, supra, 185 Cal.App.4th at page 618, addressing the disclosure of a credit report, that it was unnecessary for Webster to file a separate action to remove the personal information from public records.
In reply, Webster’s cites Kayfetz v. State of California (1984) 156 Cal.App.3d 491, for the proposition that a violation of the IPA is an independent cause of action. (Id. at p. 498, fn. 11.) We need not address Kayfetz or determine whether Civil Code section 1798.45 permits a civil action in order to resolve this appeal.
In sum, since each element of the litigation privilege is satisfied here, the privilege applies to bar Webster’s claims. Webster, therefore, has failed to meet his burden to show that he had a probability of prevailing on his claims against the Attorney General. Thus, the trial court did not err in granting the special motion to strike Webster’s complaint.
3. The Trial Court Did Not Abuse its Discretion in Setting the Amount of Fees
Webster contends the order granting the Attorney General $4,355 in attorney fees was excessive and not reasonable. We disagree.
An order granting attorney fees is generally reviewed for an abuse of discretion. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1130.) With respect to the amount of fees awarded, our review is highly deferential to the trial court. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)
A prevailing defendant on a special motion to strike is entitled to recover his or her attorney fees and costs. (§ 425.16, subd. (c)(1).) Subdivision (c)(1) of section 425.16 compensates a successful moving party for the expense of bringing a motion to strike. (See Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 362.) The provision is broadly construed to effectuate the legislative purpose of reimbursing the prevailing party for expenses incurred in dismissing a baseless lawsuit. (Ibid.; see also GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 910.)
Webster has not carried his burden to show the trial court’s award exceeded the bounds of reason and was an abuse of discretion. The trial court reviewed the declarations and was familiar with the litigation issues. Webster contends the issues in the special motion to strike were simple and did not require the Attorney General to spend the amount of hours stated in his declaration. The trial court determined the Attorney General’s hours were reasonable, and we conclude the trial court acted well within its discretion.
DISPOSITION
The judgment is affirmed. The Attorney General is to recover attorney fees and costs on appeal, and the matter is remanded to the trial court to determine appropriate fees and costs.
We concur: CROSKEY, Acting P. J., KITCHING, J.