Michael K. v. Cho CA1/5Michael K. v. Cho CA1/5
S.J. K. hired Janice Cho, in August 2022, to represent her in dissolution and domestic violence restraining order (DVRO) proceedings against her estranged husband, Michael K. Miсhael initiated a chargeback dispute after S.J. used their joint credit card to pay Cho’s legal fees. According to Michael, Cho made false and defamatory statements in contesting his dispute. He sued Cho for libel, negligence, and intentional infliction of emotional distress. Cho appeals from an order denying her special motion to strike Michael’s complaint under the anti-SLAPP statute (
claims have minimal merit. Accordingly, we reverse and remand with directions to grant Cho’s anti-SLAPP motion.
BACKGROUND
A.
S.J. filed her request for DVRO in propria persona a month before hiring Cho. In that DVRO petition, and a later filed civil tort action (where she was represented by different counsel), S.J. alleged Michael had repeatedly choked, pushed, punched, and raped her, monitored her with tracking devices and cameras, financially abused her, and emotionally abused their children by committing violent attacks in their presence.
Between October 11, 2022 and November 14, 2022, while Cho represented S.J., her legal fees (totaling $92,211) were charged to a credit card issued by Chase Bank. Both Michael and S.J. were authorized users of the community property card. In November 2022, Michael utilized Chase’s chargeback dispute process to challenge a $50,000 payment to Cho. Eleven
In response to Michael’s dispute, Cho’s legal practice management and billing vendor, MyCase, prompted Cho to supply information and documents explaining why the disputed charges were bona fide. Cho submitted a document entitled “Chargeback Rebuttal” to MyCase wherein she provided a timeline of the dissolution/DVRO proceedings and stated:
“I represent [S.J.] . . . in her pending Divorce Case and her Domestic Violence Case . . . against her abusive husband, [Michael]. [¶] . . . During her marriage . . . , [S.J.] was REGULARY choked, punched, and raped. Many of these violent attacks occurred in front of her two young children and have now traumatized the children such that the oldest child suffers from a nervous tic. [Michael] also set up camerаs in every room of the house and placed tracking devices in [S.J.’s] purse and car . . . to control and monitor her every move. Additionally, [Michael] financially abused my client by keeping her in the dark about finances. For instance, [Michael] fraudulently took out a second mortgage for $1 Million Dollars without my client’s authorized consent despite that she is listed on the Deed.” (Bold omitted.)
B.
Michael filed suit against Cho, alleging causes of action for libel per se, negligence, and intentiоnal infliction of emotional distress—all based on Cho’s statements, in the chargeback rebuttal, that Michael traumatized their children and physically/sexually abused, monitored, and financially controlled S.J.
Cho responded to Michael’s complaint by filing a special motion to strike under
In her declaration in support of her motion to strike, Cho stated that her statements in the “Chargeback Rebuttal” were summaries or verbatim statements of S.J.’s allegations in the DVRO petition and civil complaint. Cho believed they were true based on S.J.’s account and witness statements. Cho made her statements in the chargeback rebuttal to ensure that her representation of S.J. was not interrupted, as S.J. had no other resources to secure legal representation.
DISCUSSION
Cho contends that the trial court erred in denying her special motion to strike because she is being sued for litigation-related conduct protected under the anti-SLAPP statute. She further asserts that Michael failed to demonstrate a probability of prevailing on the merits. Michael, on the other hand, asserts that the trial court properly ruled that Cho failed to meet her threshold burden of demonstrating that his complaint arose from acts undertaken in furtherance of a protected activity. We agree with Cho.
A.
“A SLAPP is a civil lawsuit that is aimed at preventing citizens from exercising their political rights or punishing those who have done so.” (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.) The Legislature adopted the anti-SLAPP statute in 1992, finding “it is in the public interest to encourage continued participation in matters of public significance, and . . . this participation should not be chilled through abuse of the judicial process.” (
The anti-SLAPP statute only applies to protected activity, which is defined as activity “in furtherance of the person’s right of petition or free
Anti-SLAPP motions are evaluated in two steps. In the first step, the defendant bears the burden of identifying the allegations of protected activity and the claims for relief supported by them. When there are allegations of both protected and unprotected activity, the court disregards the unprotected activity at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, it proceeds to the second step, in which the burden shifts to the plaintiff to demonstrate that the challenged claims are legally sufficient and factually substantiated. If not, the claim is stricken. (Baral, supra, 1 Cal.5th at p. 396;
We indeрendently review the trial court’s ruling on an anti-SLAPP motion. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067.)
B.
Cho asserts the trial court applied the anti-SLAPP statute too narrowly—in conflict with its express direction that it be broadly construed (
1.
On the “arising from” requirement (
Although Cho’s chargeback rebuttal explained how Michael’s credit card dispute fit into a broader pattern of financial abuse in the marriage, Michael does not take issue with those statements. Instead, in the factual allegation section оf his complaint, Michael alleges that Cho, in her chargeback rebuttal, “made the following statements of alleged fact: [¶] a. During the marriage the petitioner was ‘REGULARY choked, punched, and raped’ by [Michael]. [¶] b. ‘[Many] of these violent attacks [choking, punching, and raping] occurred in front of [S.J.’s] two young children and have now traumatized the children such that the oldest child suffers from a nervous tic.’ [¶] c. ‘[Michael] also set up cameras in every room of the house and placеd tracking devices in [S.J.’s] purse and car in order to control and monitor her every move.’ [¶] d. ‘[Michael] financially abused my client by keeping her in the dark about finances. For instance, [Michael] fraudulently took out a second mortgage for $1 Million Dollars without [S.J.’s] authorized consent despite that she is listed on the Deed.”
Michael’s first cause of action—for libel per se—alleges that these “written statement(s) to Chase bank . . . were false,” that Cho published them “without using reasonable care to determine [their] truth or falsity,” and that her “defamatory statements were not privileged.” In his negligence cause of action, Michael alleged that, in making her written statements to Chase, Cho “failed to use ordinary care that would be utilized by a reasonable person.” Michael’s final cause of action—for intentional infliction of emotional distress—alleged that Cho’s conduct (making the statements in the chargeback rebuttal) “was outrageous in nature and performed with thе intent to cause severe emotional distress . . . or was otherwise performed with reckless disregard for the probability that such conduct would cause [Michael] severe emotional distress.”
2.
Cho contends her statements in the chargeback rebuttal were protected, under
Following the Legislature’s mandate in favor of broad construction,2 “‘courts have adopted “a fairly expansive view of
what constitutes litigation-related activities within the scope of
It is also well established that the anti-SLAPP statute protects lawyers and law firms—not just litigants—engaged in litigation-related activity. (Rusheen, supra, 37 Cal.4th at p. 1056; Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 154 (Thayer); see also Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480, 482.)
However, not every statement made by a litigant or lawyer after the start of litigation is protected by
The trial court erred by concluding Cho’s statements in the chargeback rebuttal were more closely analogous to those made in Paul v. Friedman, supra, 95 Cal.App.4th 853 than to the broad range of qualifying litigation-related conduct discussed above. Here, as plainly established by Michael’s pleading itself, his three causes of action arose directly out of the content of Cho’s statements in the chargeback rebuttal, not the fact that Cho disputed his chargeback. And Cho’s rebuttal did not contain any statements of fact about Michael that were unrelated to the issues in the dissolution and DVRO actions. In fact, as Michael cоncedes, the statements he challenged precisely mirrored S.J.’s allegations in the DVRO petition and civil tort action. Michael does not argue that any other activities underlie his causes of action; he merely suggests that his claims do not involve protected conduct because the context in which Cho’s statements were made—the credit card chargeback dispute—is wholly unrelated to any issue under review in the litigation.
Second, as the rebuttal itself explains, S.J.’s allegations of financial abuse and her right to usе community property funds to pay her legal fees were substantive issues in the litigation. In her DVRO petition, S.J. requested spousal and child support, the payment of attorney fees, and alleged that Michael restricted her access to and “controls all the [couple’s] money.” Depriving a spouse of funds required for basic necessities qualifies as abuse under the Domestic Violence Prevention Act. (See
Furthermore, the trial court and Michael overlook the dissolution рroceedings, which put oversight and characterization of marital assets and debts before the family court. (See
The trial court also erred by concluding Chase had no interest in the litigation.
Cho made the threshold showing of demonstrating that Michael’s claims arose from protected activity. Although the trial court did not аddress the second prong of the anti-SLAPP analysis, we have discretion to decide the issue because it is subject to independent review. (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 615–616.)
3.
Michael failed to demonstrate any probability of prevailing on his libel, negligence, and intentional infliction of emotional distress claims.
At the second step, the burden shifts to the plaintiff to demonstrate the claim arising from protected activity has “‘at least “minimal merit.“’” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.) Our Supreme Court describes “this second step as a ‘summary-judgment-like procеdure.’ [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.” (Baral, supra, 1 Cal.5th at pp. 384–385, fn. omitted.) A plaintiff must demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated with competent and admissible evidence. If not, the claim is stricken. (Id. at p. 396; Thayer, supra, 207 Cal.App.4th at p. 159.) “A plaintiff cannot establish a prima facie case if the litigation privilege precludes a defendant’s liability on the claim.” (Timothy W., supra, 85 Cal.App.5th at p. 661.)
First, Cho argues that Michael’s defamation cause of action lacks minimal merit because he did not present sufficient evidence to meet his burden. She asserts that proof of libel requires, at a minimum, evidence that the defendant failed to exercise reasonable care in determining the truth or falsity of the challenged statements. She also points out that, although Michael made conclusory negligence allegations in his complaint, he did not offer any evidence of Cho’s negligence in opposition to her anti-SLAPP motion. We agree, at least in part.
The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or that causes special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) Defamation can be of two types, libel or slander. (
Contrary to Michael’s unsupported assertion, liability for libel cannot be imposed without fault. (Carney v. Santa Cruz Women Against Rape (1990) 221 Cal.App.3d 1009, 1015.) A private party plaintiff, like Michael, has the burden of proving, at a minimum, that the defendant failed to use reasonablе care to determine the falsity of the statement. (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 470; accord, Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 398.)
In his opposition to Cho’s motion below and his respondent’s brief, Michael (with one exception) did not even attempt to establish a probability of prevailing on this latter requirement. In his declaration submitted in opposition below, Michael denied ever punching, kicking, choking, raping, or financially abusing S.J. However, other than stating that “[a] simple lien search of our property would have revealed [that there was no second mortgage on the couple’s home],” Michael did not present any evidence to support a finding that Cho made the statements in the chargeback rebuttal without exercising reasonable care to determine their truth or falsity. He cannot rely on the allegations of his complaint to demonstrate a probability of success on the merits. (Thayer, supra, 207 Cal.App.4th at p. 159.)
Second, Cho’s statements in the rebuttal chargeback are also absolutely privileged (
The final element is the only one challenged here. “To be privileged under [Civil Code] section 47, a statement must be ‘reasonably relevant’ to pending or contemplated litigation.” (Neville, supra, 160 Cal.App.4th at p. 1266, italics omitted.) In other words, the statement must ” ‘not be extraneous to the actiоn.’ ” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251; see Nguyen v. Proton Technology Corp. (1999) 69 Cal.App.4th 140, 143-144, 151 [“any ‘connection’ between [a purported domestic violence] conviction and the civil unfair competition focus of [the attorney’s] demand letter is . . . tenuous“].)
Michael contends Cho’s statements are not covered by the litigation privilege because she made them to third-party Chase Bank. However, the privilege, like the protection afforded by the anti-SLAPP statute, is not restricted to statements made between the parties to a lawsuit. (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 529; see id. at p. 530.) The litigation privilegе is broad enough to include “publication to nonparties with a substantial interest in the proceeding.” (Susan A. v. County of Sonoma (1991) 2 Cal.App.4th 88, 94; see also Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 4-6.) It does not apply “where publication is to persons in no way connected with the proceeding.” (Susan A., at p. 93 [statements to press].)
Here, the litigation privilege applies because Cho’s chargeback rebuttal statements were made in connection with judicial proceedings (i.e., the dissolution and DVRO proceedings) by S.J.’s attorney with the aim of achieving S.J.’s litigation objectives (continued represеntation so that S.J. might obtain relief). For the same reasons stated above, the statements were reasonably related to the actions and were made to nonparties with a substantial interest in the litigation. Unlike the statements in Nguyen v. Proton Technology Corp., supra, 69 Cal.App.4th at pages 143-144, 149, 152, the chargeback rebuttal contained no factual statements that were extraneous to the DVRO petition and dissolution action.
Accordingly, all of Michael’s tort claims are barred under the litigation privilege and Cho’s motion to strike should have beеn granted. (See Timothy W., supra, 85 Cal.App.5th at pp. 662-663; Dziubla, supra, 59 Cal.App.5th at pp. 154-157.)
DISPOSITION
The order denying Cho’s special motion to strike is reversed. The matter is remanded to the trial court with instructions to enter an order granting the motion. Cho is entitled to her costs on appeal. (
BURNS, J.
WE CONCUR:
SIMONS, ACTING P. J.
CHOU, J.
Michael V. K. v. Cho (A169917)