85 Cal.App.5th 648
Cal. Ct. App.2022Background
- Timothy and Julie, married in 1995, allegedly had an oral promise that Julie would keep certain sensitive information about Timothy confidential; Timothy later filed for divorce in 2018.
- During the dissolution, Julie hired private investigator Ronnie Echavarria and disclosed the sensitive information to him; Echavarria in turn told at least one third party, and the information reached a total of six people.
- Timothy sued Julie and Echavarria alleging 12 causes of action (contract, multiple torts, privacy, defamation, and injunctive relief) while the dissolution was pending.
- Defendants moved to strike under the anti‑SLAPP statute; the trial court granted the motion as to causes 3–12 (tort claims) but denied it as to two breach‑of‑contract causes (including a specific‑performance claim); Echavarria’s anti‑SLAPP motion was granted in full.
- On appeal the court held the anti‑SLAPP statute applies, the litigation privilege bars the tort claims, and the contract claims are either barred by the litigation privilege or by Family Code §1620; it affirmed in part and reversed in part, directing dismissal of all causes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants’ communications were protected activity under §425.16 | Julie’s statements to a PI and others were not protected because they were not made in a tribunal and were unrelated to litigation | Hiring an investigator and communications made to investigate divorce issues are acts in furtherance of petition/speech and fall within §425.16(e) | Anti‑SLAPP applies: disclosures were made in connection with pending dissolution and investigatory litigation activity, so protected |
| Whether litigation privilege bars the tort claims (II–XII) | Privilege should not apply because disclosures caused harm and were not limited to formal proceedings | Litigation privilege (§47(b)) protects communications by litigants/participants made to achieve litigation objectives, including pretrial investigation | Held: litigation privilege applies broadly and bars causes 3–12; trial court correctly dismissed those tort claims |
| Whether breach of oral contract and specific performance claims survive anti‑SLAPP | Timothy asserts an enforceable oral confidentiality promise and seeks damages and specific performance | Defendants argue specific performance is not a cause of action and the contract claim arises from litigation activity and is barred (privilege and other defenses) | Held: Specific performance is a remedy not a cause of action (claim 2 fails). The oral contract claim (claim 1) is barred — privilege applies and, independently, Family Code §1620 voids such spousal contract |
| Whether Family Code §1620 permits enforcement of a post‑marital confidentiality contract between spouses | Timothy contends the oral agreement is enforceable and does not alter marital legal relations | Defendants argue spouse‑to‑spouse contracts that alter legal relations (other than property) are void under Fam. Code §1620 | Held: Fam. Code §1620 bars the alleged oral contract because it would alter legal relations between spouses (not a property agreement), so claim fails |
Key Cases Cited
- Rusheen v. Cohen, 37 Cal.4th 1048 (2006) (acts preparing or supporting litigation, including communicative conduct, fall within anti‑SLAPP protection)
- Baral v. Schnitt, 1 Cal.5th 376 (2016) (plaintiff must show probability of prevailing on each challenged claim in anti‑SLAPP second step)
- Flatley v. Mauro, 39 Cal.4th 299 (2006) (narrow exception to anti‑SLAPP where defendant’s conduct is criminal and concession or conclusive proof of illegality exists)
- Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal.4th 1232 (2007) (litigation privilege broadly protects communications related to judicial or quasi‑judicial proceedings)
- Silberg v. Anderson, 50 Cal.3d 205 (1990) (malicious prosecution is recognized as a limited exception to the litigation privilege)
- Contemporary Services Corp. v. Staff Pro Inc., 152 Cal.App.4th 1043 (2007) (communications to witnesses/clients in connection with pending litigation can be protected by anti‑SLAPP)
- Tichinin v. City of Morgan Hill, 177 Cal.App.4th 1049 (2009) (hiring a PI in furtherance of litigation is protected activity under the Noerr‑Pennington/anti‑SLAPP analysis)
- Crossroads Investors, L.P. v. Federal National Mortgage Assn., 13 Cal.App.5th 757 (2017) (privilege may not apply to contract claims when applying it would defeat the policies underlying the privilege)
- Wentland v. Wass, 126 Cal.App.4th 1484 (2005) (whether privilege applies to contract claims depends on whether applying it furthers privilege purposes)
- Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106 (1999) (investigatory and preparatory litigation activity can be protected by anti‑SLAPP)