Keefe v. KompaKeefe v. Kompa
CROSBY, J.
Plaintiff Thomas J. O‘Keefe sued defendants for abuse of process and title disparagement after defendants initiated collection efforts on a judgment on appeal. That judgment was against O‘Keefe personally and arose out of an earlier action he brought for attorney fees under
I
In the underlying litigation, O‘Keefe sought to recover $30,000 he was forced to pay as guarantor on a loan to a failed business entity. He also sought attorney fees based on a fee-shifting provision in the loan documents. Not only did O‘Keefe lose that case, but also he was ordered to
While that appeal was pending, however, attorneys for the two subsets of the present defendants took steps to secure payment of the attorney fees judgment. That is, attorney Donald Studer, representing several individual defendants in the underlying action, levied on a bank account of O‘Keefe‘s law partnership, while attorney Mark A. Kompa, who represented the balance of the defendants, filed an abstract of judgment with the Orange County Recorder‘s Office.
O‘Keefe was not amused. Several months later he sued attorney Kompa and his clients, as well as Studer, for abuse of process and slander of title.2 The gist of plaintiffs complaint was that his appeal of the underlying judgment and attorney fees order automatically stayed any collection efforts under Code of
II
A four-part test determines whether a particular statement falls within this litigation privilege. To be privileged a statement must (1) be made in a judicial proceeding, (2) by litigants or other authorized participants, (3) aim to achieve the litigation‘s objects, and (4) have some logical connection or relation to the proceeding. (Silberg v. Anderson, supra, 50 Cal.3d at p. 212, 266 Cal.Rptr. 638, 786 P.2d 365.) Moreover, the scope of “publication or broadcast” includes noncommunicative conduct like the filing of a motion for a writ of sale (Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 64-66, 75 Cal.Rptr.2d 83), the filing of assessment liens (Wilton v. Mountain Wood Homeowners Assn., Inc. (1993) 18 Cal.App.4th 565, 568-571, 22 Cal. Rptr.2d 471), or the filing of a mechanic‘s lien (Frank Pisano & Associates v. Taggart (1972) 29 Cal.App.3d 1, 25, 105 Cal. Rptr. 414). The privilege also applies to conduct or publications occurring outside the courtroom (Silberg v. Anderson, supra, 50 Cal.3d at p. 212, 266 Cal.Rptr. 638, 786 P.2d 365), to conduct or publications which are legally deficient for one reason or another (Frank Pisano & Associates v. Taggart, supra, 29 Cal.App.3d at p. 25, 105 Cal.Rptr. 414), and even to malicious or fraudulent conduct or publications. (Silberg v. Anderson, supra, 50 Cal.3d at pp. 216-218, 266 Cal.Rptr. 638, 786 P.2d 365; Wilton v. Mountain Wood Homeowners Association, Inc., supra, 18 Cal.App.4th at p. 571, 22 Cal.Rptr.2d 471.)
Under these criteria defendants’ enforcement efforts are clearly privileged under
Moreover, that these actions occurred after trial (rather than before or during trial, as in the vast majority of section 47 cases) is not meaningful. Numerous cases apply the privilege to pre-trial conduct, some even going so far as to apply it to pre-complaint activities. (See, e.g., Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 261-268, 68 Cal.Rptr.2d 305; Wilton v. Mountain Wood Homeowners Association, Inc., supra, 18 Cal.App.4th at p. 570, 22 Cal.Rptr.2d 471.) We see no meaningful distinction that might warrant treating defendants’ post-trial collection activities differently.6 We conclude defendants’ actions were logically and legally related to the realization of a litigation objective— that is, collection of a judgment.
Plaintiff‘s effort to evade section 47‘s litigation privilege fails. He suggests the abstract of judgment filed by defendant Kompa was “fraudulent,” thereby somehow removing it from the operation of the privilege. Plaintiff is misguided. As noted above, Silberg leaves no room for doubt: For policy reasons, even an act committed fraudulently or with malice is privileged under
The conclusion that defendants’ actions were privileged (even if, as alleged, wrongful and harmful) necessarily means plaintiff has no tort remedy against them. One of the policies furthered by section 47 is “freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” (Silberg v. Anderson, supra, 50 Cal.3d at p. 213, 266 Cal.Rptr. 638, 786 P.2d 365.) This and other “salutary policy reasons for an absolute privilege supersede individual litigants’ interest in recovering damages for injurious publications made during the course of judicial proceedings.” (Id. at p. 218, 266 Cal.Rptr. 638, 786 P.2d 365.) But this does not mean plaintiff was remediless. He could have posted an undertaking or sought a writ of supersedeas to forestall defendants’ allegedly improper collection efforts. (See, e.g., Nielsen v. Stumbos (1990) 226 Cal.App.3d 301, 303, 276 Cal.Rptr. 272.)8
Judgment affirmed.
SILLS, P.J., and BEDSWORTH, J., concur.
Notes
“[Plaintiff‘s counsel]: Perhaps the court just misspoke. What the court just said was no bond was required. If no bond was required, then what [defendants did] is completely impermissible.
“The Court: Right. No bond was required, therefore the lien that was filed by the attorneys is not an improper action on the part of the attorneys.”
Undaunted, plaintiff‘s counsel again attempted to explain the bond requirement of Code of Civil Procedure sections 916 and 917.1 and the judicial gloss thereon. The court then declared, “My understanding is that a bond ... would be required” by plaintiff to stay efforts to collect the attorneys’ fees judgment while it was on appeal. Defense counsel agreed with alacrity. The court then clarified: “A bond is needed and there was no bond posted. There being no bond posted, the activities [of defendants] are not actionable, in my view, and the demurrer is properly sustained. Not curable by any opportunity to amend. I apologize for any misstatement.”