L.G. v. M.B.L.G. v. M.B.
- Reporters:
- , ,
- Before:
- Lui, Ashmann-Gerst, Hoffstadt
Buchalter, Harry W. R. Chamberlain II, Efrat M. Cogan and Robert M. Dato for Defendant and Appellant.
Mayer Brown, Donald M. Falk, Kim J. Zaneta; Erin Canfield Smith and Jennafer Dorfman Wagner for Family Violence Appellate Project as Amicus Curiae on behalf of Defendant and Appellant.
Caskey & Holzman, Marshall A. Caskey, Daniel M. Holzman and Neama Cory Barari for Plaintiff and Respondent.
Under
The trial court found that the divorce proviso applied here because Appellant‘s statements were included in a pleading “filed in” her dissolution action, and Respondent neither asserted nor was the subject of any request for relief in that action. (
Although we differ on the reason, we also agree with the trial court‘s conclusion that Appellant‘s success in obtaining two temporary restraining orders—one against Ex-Husband in the dissolution action and one against Respondent in a separate civil harassment action—did not establish as a matter of law that there was “reasonable and probable cause” to believe that Appellant‘s challenged statements about Respondent were true. (
Appellant‘s legal arguments concerning the litigation privilege and the effect of the prior rulings on the restraining orders are her only challenges on appeal to the trial court‘s finding that Respondent established a “probability that [she] will prevail” on her claims. (
BACKGROUND
1. The Anti-SLAPP Procedure
2. Appellant‘s Requests for Restraining Orders
a. The dissolution action
On April 3, 2017, Appellant filed an ex parte request for a restraining order against Ex-Husband in her pending dissolution action. In her declaration in support of the request, Appellant described abuse by Ex-Husband, including physical beatings (documented with photographs), verbal threats of violence, and personal insults. Appellant testified that Ex-Husband owned a firearm and had a previous conviction for domestic violence.
Appellant also claimed that Ex-Husband threatened to release embarrassing video recordings of sexual encounters that Ex-Husband forced her to have. She testified that Ex-Husband brought “random women” to hotel rooms and compelled Appellant to participate in sexual intercourse with him and these women, which he recorded against Appellant‘s wishes. Ex-Husband used threats to release these recordings as a means of control over Appellant.
Appellant‘s declaration also made various allegations about Respondent. Among other things, Appellant alleged that: (1) Ex-Husband began a sexual relationship with Respondent after he hired her as a nanny and set Respondent up as Appellant‘s “rival“; (2) Ex-Husband paid Respondent large amounts of Appellant‘s money for purported nanny services, including a large lump sum paid to an entity affiliated with Respondent after Appellant finally fired Respondent; (3) Respondent became pregnant with Ex-Husband‘s child, and Ex-Husband used Appellant‘s money to pay for an abortion; (4) at Ex-Husband‘s instruction, Respondent took Appellant‘s children
The court granted Appellant‘s request for a restraining order and issued a temporary order on a standard Judicial Council form. The order was to stay in effect until a hearing that was scheduled for April 24, 2017. At Ex-Husband‘s request, the hearing was continued until October 2017. The record does not reflect any further hearing on Appellant‘s request.4
b. The civil harassment action
On April 10, 2017, Appellant filed an ex parte petition for a restraining order against Respondent in a civil harassment proceeding separate from the dissolution action. The petition sought various stay-away and personal conduct orders as well as orders permitting Appellant to have access to a storage facility and prohibiting Respondent from removing items from that facility.
In a declaration filed in support of her request, Appellant repeated many of the allegations against Respondent that she had included in her restraining order request in the dissolution action, including allegations that Respondent verbally abused her. Appellant also made additional allegations concerning her personal property. Appellant alleged that Respondent had said she was in possession of videos that Ex-Husband was using to
The court issued a temporary order granting Appellant‘s stay-away and personal conduct requests. The order also granted Appellant immediate access to the identified storage facility and permission to retrieve her personal belongings from the facility, and prohibited Respondent from removing any property from the storage facility “until further order of the court.” The court set a hearing for May 3, 2017.
There was no appearance for Respondent at the May 3rd hearing. The court initially granted a five-year restraining order at that hearing, but subsequently vacated that ruling following a motion by Respondent claiming that she had not been properly served prior to the hearing. The court instead continued the temporary order pending a further hearing. The action subsequently settled.
3. Respondent‘s Complaint
Respondent filed her complaint in this action on April 20, 2017. The complaint asserts claims for defamation, invasion of privacy, false light, and intentional infliction of emotional distress based entirely on Appellant‘s allegations against her in Appellant‘s declaration filed in the dissolution action.
The complaint alleges that Appellant‘s allegations were false. According to the complaint, Respondent was a naïve 18-year-old woman when she first met Appellant and Ex-Husband,
4. Appellant‘s Anti-SLAPP Motion
Appellant filed an anti-SLAPP motion seeking dismissal of each of Respondent‘s claims. The motion argued that Respondent could not show a probability that her claims will succeed on the merits, as Appellant‘s declaration was absolutely privileged under section 47. She also argued that, even if the exception to the privilege under
Respondent‘s opposition did not dispute that, because her claims against Appellant are based on statements made during litigation, they “arise from” protected activity under the first prong of the anti-SLAPP procedure. (
The trial court denied Appellant‘s anti-SLAPP motion. The court concluded that the express language of
As in the trial court, Appellant‘s arguments on appeal are limited to the second prong of the anti-SLAPP procedure. Appellant argues that Respondent failed to show a probability that she would prevail on her claims because the statements that Respondent challenges in her lawsuit were made in a court filing and therefore were absolutely privileged under section 47. Alternatively, she argues that, even if only a qualified litigation privilege applied to those statements under
1. The Divorce Proviso Exception to the Litigation Privilege Applies to Appellant‘s Challenged Statements Filed in Her Marital Dissolution Action
The litigation privilege established by
Thus, the litigation privilege is broad. Nevertheless, the privilege is subject to specific statutory exceptions. As mentioned,
a. Prior precedent
Appellant argues that we are not painting on an empty canvas in interpreting the divorce proviso because our Supreme Court already defined its scope in Silberg. Appellant argues that the divorce proviso should be interpreted narrowly, citing the court‘s observation in Silberg that the divorce proviso “may well be an unnecessary anachronism.” (Silberg, supra, 50 Cal.3d at p. 216.) Amicus goes even further in arguing that in Silberg the court “authoritatively construed the proviso‘s language in a way that excludes third-party abusers from its reach.” If that were correct and our Supreme Court had already interpreted the proviso in a manner that excluded the statements at issue in this case, of course our task would be done. But the court‘s decision in Silberg did not include such a holding.
In Silberg, the court disapproved an “interest of justice” exception to the litigation privilege that several Courts of Appeal had adopted. (Silberg, supra, 50 Cal.3d at pp. 212–213.) That exception excluded communications from the litigation privilege if the communications were “not made for the purpose of promoting the ‘interest of justice.’ ” (Id. at p. 212.)
In rejecting this exception, the court relied in part on the language of the divorce proviso. The court noted that the divorce proviso was added to section 47 in 1927 to provide that “an allegation involving corespondents in pleadings and affidavits filed in divorce actions is not privileged unless stated under oath, without malice, and on reasonable grounds.” (Silberg, supra, 50 Cal.3d at p. 216.) The court reasoned that, by “negative implication . . . statements published in proceedings other than
The court in Silberg did not define the term “corespondent.” (Silberg, supra, 50 Cal.3d at p. 216.) However, the court‘s observation that the divorce proviso may be an anachronism suggests that the court intended to refer to the historical meaning of the term. “Corespondent” was used historically in divorce actions before the days of no-fault marital dissolution to refer to a person who was accused of committing adultery with a party as a ground for divorce. (See, e.g., Van Camp v. Van Camp (1921) 53 Cal.App. 17, 19 [“the plaintiff first charged . . . that the husband had committed adultery with a person who was named as corespondent“].) Amicus argues that the court‘s use of the term means that the court intended to limit the scope of the divorce proviso to persons falling within the historical definition
We do not agree with this interpretation. First, the court in Silberg did not purport to make any holding on the scope of the divorce proviso. It did not need to do so. The divorce proviso was relevant in the court‘s discussion only to show that, in actions outside the scope of that proviso, there is no malice requirement. The precise scope of the proviso was not important; its only significance was to show that the malice requirement is limited to the dissolution actions in which it applies. Thus, the court‘s description of the divorce proviso and its observation that the proviso may be an anachronism were not part of its holding. “[A]n opinion is only authority for those issues that it actually considered or decided.” (Rosen v. State Farm General Ins. Co. (2003) 30 Cal.4th 1070, 1076.)
Second, and consistent with the issue that it was considering, the court in Silberg did not engage in any textual analysis of
Third, to the extent that the court did understand the divorce proviso to be an anachronism that no longer applied to any pleading filed in a dissolution action, that view is no longer tenable in light of subsequent legislative action. The Legislature amended
Whatever the precise scope of the amended subdivision, we presume that the Legislature‘s decision to retain and apply the exception to dissolution actions in 1990 rather than repealing it means that it intended the provision to be something other than a dead letter. As the court observed in Silberg, “we presume that the Legislature does not engage in idle acts.” (Silberg, supra, 50 Cal.3d at p. 216.)
The court in Thornton v. Rhoden (1966) 245 Cal.App.2d 80, which Amicus also cites, described the divorce proviso in passing by explaining that “certain allegations made in divorce and similar actions against corespondents are not privileged” unless the conditions of the proviso are met. (Id. at p. 89.) However, like our Supreme Court in Silberg, the court in Thornton did not decide the scope of the divorce proviso and cited that provision only as potentially relevant to interpreting the scope of the litigation privilege where the proviso does not apply. That decision is no more helpful than Silberg in interpreting the scope of the divorce proviso itself.
Thus, in the absence of relevant precedent, we must consider whether the scope of the divorce proviso includes Appellant‘s challenged statements that she filed in her dissolution action. We begin, as we must, with the language of the statute. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272 (Day).)
b. Statutory language
Appellant‘s challenged statements fall within the express scope of the divorce proviso. Respondent‘s claims are based on “allegation[s]” and “averment[s]” that Appellant made concerning
Despite the plain language of
Because the language of the statute is clear, we need not resort to legislative history or policy considerations as a guide to interpret the statute. We nevertheless address Appellant‘s arguments on these topics to ” ‘test our construction against those extrinsic aids that bear on the enactors’ intent.’ ” (Day, supra, 25 Cal.4th at p. 274, quoting Powers v. City of Richmond (1995) 10 Cal.4th 85, 93.)
Appellant argues that the Legislature did not intend the divorce proviso to apply to requests for domestic violence restraining orders because (1) the
Just as dissolution actions typically include requests for many different types of relief, many of the types of relief that are available in dissolution actions are also available in other contexts. For example, child custody and child support awards may be sought in an action separate from a dissolution proceeding (
Appellant‘s arguments concerning the original purpose for the divorce proviso do not change this conclusion. Appellant cites scholarly commentary suggesting that the proviso was adopted to avoid ” ‘legal blackmail’ ” through unfounded allegations of adultery against third parties in divorce proceedings. (See Friedman, Guarding Life‘s Dark Secrets: Legal and Social Controls Over Reputation, Propriety, and Privacy (Stanford U. Press 2007) p. 290, n. 48.) Presumably the defamatory effects of such unfounded allegations would be just as severe whether they appeared in the original complaint seeking a divorce based upon the fault of a spouse or in some other pleading filed during the proceeding, such as a motion for child custody or a restraining order.
Appellant‘s argument that the procedure for obtaining domestic violence protective orders did not exist in 1927 when the divorce proviso was originally enacted does not take account of the Legislature‘s 1990 amendment. A procedure for obtaining domestic violence restraining orders did exist when the Legislature amended the divorce proviso in 1990. Indeed, in September 1990, the same month that the Legislature amended the divorce proviso, it also enacted substantive changes to the procedures for obtaining a domestic violence restraining order. (See Stats. 1990, ch. 752.) If the Legislature wished to exclude applications for a domestic violence restraining order from the scope of
Thus, the legislative history of the divorce proviso does not support a reading that would exclude Respondent from its scope.
Appellant and Amicus present various reasons why reading the divorce proviso narrowly to exclude declarations in support of restraining orders would be consistent with the policies and goals of the statutory scheme governing domestic violence restraining orders. For example, they argue that applying the divorce proviso to pleadings seeking domestic violence restraining orders in dissolution actions would: (1) create inconsistency with cases holding that family law motions, including motions for restraining orders, are immune even from malicious prosecution actions;11 (2) discourage restraining order applications by victims
While many of these arguments articulate persuasive policy goals, whether this court believes that those goals are important is not the issue. Appellant has not raised any equal protection or other constitutional challenge to the application of the divorce proviso to her challenged statements. Our review is therefore limited to interpreting the statute.
In doing so, this court “ ‘has no power to rewrite the statute so as to make it conform to a presumed intention which is not expressed.’ ” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 75, quoting California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632–633.) Where the statutory language is clear, we may not use our own policy judgments to justify a contrary interpretation. “ ‘The plain
Citing Cassell v. Superior Court (2011) 51 Cal.4th 113, Appellant asserts that, despite the general principle that the plain language of a statute is controlling, we must avoid a “literal construction [that] would produce absurd results.” (Id. at p. 124.) But this is not one of the rare cases in which applying the literal terms of a statute would subvert clear legislative intent. “To justify departing from a literal reading of a clearly worded statute, the results produced must be so unreasonable the Legislature could not have intended them.” (In re D.B. (2014) 58 Cal.4th 941, 948, citing Cassell, at p. 136.) A court may not disregard the plain language of a statute just because the consequences of a literal interpretation are “troubling” or because the court believes that a different approach would be better. (D.B., at p. 948.)
The Legislature could have made rational distinctions concerning the scope of the litigation privilege between pleadings filed in dissolution actions and in separate proceedings for domestic violence restraining orders. The Legislature might have concluded that dissolution proceedings are more likely to involve allegations of adultery or other potentially defamatory assertions about third parties who have allegedly interfered with the
We do not suggest that the Legislature actually had this rationale in mind in declining to amend or repeal the divorce proviso. But the decision to give effect to the plain language of
Appellant argues that the two judges’ decisions granting her requests for temporary restraining orders in the dissolution action and in her separate civil harassment action against Respondent established as a matter of law that she had “reasonable and probable cause for believing the truth of” the allegations she made about Respondent. Appellant analogizes to the doctrine applied in malicious prosecution actions commonly called the “ ‘interim adverse judgment rule.’ ” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 771 (Parrish).)
The interim adverse judgment rule operates to preclude a malicious prosecution claim when a ruling in the prior action on which the claim is based shows that the defendant (i.e., the former plaintiff) had probable cause to bring that action. The elements of a malicious prosecution claim include proof that the defendant “initiated or maintained” a previous action “without probable cause.” (Parrish, supra, 3 Cal.5th at p. 775.) Under the interim adverse judgment rule, “if an action succeeds after a hearing on the merits, that success ordinarily establishes the existence of probable cause . . . even if the result is overturned on appeal or by later ruling of the trial court.” (Id. at p. 771.) The rule applies to the successful defense of a summary judgment motion by the former plaintiff (and current defendant) in the prior action (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 823–824 (Wilson)); a ruling denying a motion for nonsuit, if based on an evaluation of the evidence (Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150,
We agree with Appellant that the rationale underlying the interim adverse judgment rule is potentially relevant to determining whether a ruling in a prior case established the probable cause required under
However, the analogy is not perfect. A malicious prosecution action will fail if the defendant had probable cause to bring a claim in the prior action. In contrast, the litigation privilege applies under
We need not decide whether, and how, the interim adverse judgment rule applies to proof of probable cause as a matter of law under
In the malicious prosecution context, our Supreme Court has observed that a prior ruling cannot establish probable cause if the reasons for the ruling are uncertain. In Wilson, the court held that a prior ruling denying an anti-SLAPP motion may establish probable cause for the plaintiff’s action under the interim adverse judgment rule.14 However, the court explained that a ruling on an anti-SLAPP motion that was based on procedural or technical grounds, or on the ground that the action did not arise from a protected activity under the first prong of the
For the reason discussed above, the potential for uncertainty about the scope of a prior ruling is even greater in a case such as this, which involves challenges to particular statements, than in a malicious prosecution case, which involves a broader challenge to a claim. In a defamation case or similar action challenging particular allegations, it is not enough to discern from a prior ruling whether the court found that a claim had sufficient merit to proceed. One must also determine whether the court made favorable findings about each challenged allegation underlying the claim.
The difficulty here is similar to the problem that can arise in determining whether to give collateral estoppel effect to a prior judicial decision.15 Collateral estoppel applies only if an issue
The record in this case does not contain sufficient information to discern which, if any, of Appellant’s challenged allegations the court found had merit when the temporary restraining orders were issued. Appellant’s statements in support of the restraining order in the dissolution action (which include all the statements directly at issue in this action) primarily concerned Ex-Husband, who was the person that Appellant sought to restrain. Those statements included direct allegations of abuse by Ex-Husband that could have been sufficient in themselves to support the judge’s decision to issue a temporary restraining order against Ex-Husband without ever considering Appellant’s allegations about Respondent.
Although Appellant sought a restraining order against Respondent in the civil harassment action, the judge’s ruling in that action nevertheless does not reveal what findings, if any, the judge made about Appellant’s particular allegations in support of
Other than legal arguments concerning the litigation privilege and the interim adverse judgment rule, Appellant does not raise any other challenge to the trial court’s finding that Respondent supported her opposition to Appellant’s anti-SLAPP motion with sufficient evidence showing a probability that she will prevail on her claims. (
Respondent does not challenge the trial court’s ruling denying her attorney fees for successfully opposing Appellant’s anti-SLAPP motion below. However, she argues that Appellant’s appeal was frivolous and that Respondent is therefore entitled to her fees on appeal.
We conclude that Appellant’s appeal was not frivolous or solely intended to cause unnecessary delay. (
The trial court’s order denying Appellant’s anti-SLAPP motion is affirmed. Respondent is entitled to her costs on appeal.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.