25 Cal.App.5th 211
Cal. Ct. App.2018Background
- M.B. (Appellant) filed a declaration in her pending marital dissolution case seeking a domestic violence restraining order against her ex-husband; that declaration included multiple allegations about L.G. (Respondent), the couple’s former nanny.
- M.B. separately obtained a temporary civil harassment restraining order against L.G. in a different proceeding; both restraining orders were temporary and the records do not show full merits findings tied to the specific allegations challenged here.
- L.G. sued M.B. for defamation, invasion of privacy/false light, and intentional infliction of emotional distress based solely on the statements about L.G. in M.B.’s declaration filed in the dissolution action.
- M.B. moved to strike under the anti-SLAPP statute (Code Civ. Proc. § 425.16), arguing the statements were absolutely privileged under Civil Code § 47(b) or, at minimum, supported by probable cause because the temporary restraining orders had been granted.
- The trial court denied the anti-SLAPP motion, concluding the Civil Code § 47(b)(1) “divorce proviso” applies (so only a qualified privilege exists) and that the TROs did not establish probable cause for the challenged statements as a matter of law. The Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument (L.G.) | Defendant's Argument (M.B.) | Held |
|---|---|---|---|
| Whether Civil Code § 47(b)(1) (the "divorce proviso") applies to allegations in a declaration filed in a dissolution action seeking a domestic violence restraining order | §47(b)(1) applies; statements in a pleading/affidavit filed in a dissolution action about a nonparty are only privileged if verified, without malice, and with probable cause | The proviso should not cover restraining-order applications filed in dissolution proceedings; it was intended narrowly (historical "corespondent" scope) and should exclude DV applications to avoid chilling victims | Held: The plain text of §47(b)(1) applies to any pleading or affidavit filed in an action for marital dissolution; the proviso covers M.B.’s declaration filed in the dissolution action. Court must follow statute; policy arguments are for the Legislature. |
| Whether the temporary restraining orders (in dissolution and civil harassment proceedings) establish as a matter of law that M.B. had reasonable and probable cause to believe the challenged statements were true | L.G.: TROs are preliminary and do not show probable cause for the specific allegedly false statements | M.B.: Prior rulings granting TROs establish probable cause under the interim adverse-judgment principle, so the statements are protected by the qualified proviso | Held: Denied. The record is too opaque—the TRO orders do not disclose the factual bases tying the judges’ reasons to the particular challenged allegations—so they do not establish probable cause as a matter of law. |
| Whether Respondent met her burden under anti-SLAPP prong two to show a probability of prevailing on claims based on protected activity | L.G.: She submitted evidence that, if believed by a jury, would show falsity, malice, and lack of probable cause for the challenged statements | M.B.: If §47(b)(1) applies, the TROs and the privileged nature of litigation statements defeat L.G.’s showing | Held: The trial court properly denied the anti-SLAPP motion because L.G. made a prima facie showing sufficient for trial on the merits. |
| Entitlement to attorney fees on appeal | L.G.: Appellate fees requested because appeal was frivolous | M.B.: Appeal raised colorable legal issues | Held: Appeal not frivolous; no appellate attorney fees awarded to L.G.; costs to respondent affirmed. |
Key Cases Cited
- Silberg v. Anderson, 50 Cal.3d 205 (Cal. 1990) (describing the litigation privilege and discussing the divorce proviso’s malice/probable-cause requirements)
- Wilson v. Parker, Covert & Chidester, 28 Cal.4th 811 (Cal. 2002) (interim adverse-judgment rule discussion; when prior rulings may establish probable cause)
- Parrish v. Latham & Watkins, 3 Cal.5th 767 (Cal. 2017) (elements and rationale of interim adverse-judgment rule in malicious prosecution context)
- Baral v. Schnitt, 1 Cal.5th 376 (Cal. 2016) (anti-SLAPP two-step burden-shifting framework)
- Rubin v. Green, 4 Cal.4th 1187 (Cal. 1993) (litigation privilege is absolute for torts except malicious prosecution)
- DKN Holdings LLC v. Faerber, 61 Cal.4th 813 (Cal. 2015) (requirements for collateral estoppel; issue actually litigated and necessarily decided)