Terry RUSHEEN, Cross-Complainant and Appellant,
v.
Barry E. COHEN et al., Cross-Defendants and Respondents.
Supreme Court of California.
*518 Law Office of Robert F. Henry and Robert F. Henry, Culver City, for Cross-complainant and Appellant.
Lewis Brisbois Bisgaard & Smith, John R. Feliton, Jr., Elizabeth G. O'Donnell and Raul L. Martinez, Los Angeles, for Cross-defendants and Respondents.
Murphy, Pearson, Bradley & Feeney and Mark E. Ellis, Sacramento, for California Association of Collectors, National Association of Retail Collection Attorneys and California Creditors Bar Association as Amici Curiae on behalf of Cross-defendants and Respondents.
*517 CHIN, J.
Are actions taken to collect a judgment, such as obtaining a writ of execution and levying on a judgment debtor's property, protected by the litigation privilege of Civil Code section 47, subdivision (b), as "communication[s]" in the course of a judicial proceeding? In Brown v. Kennard (2001)
We conclude that where the cause of action is based on a communicative act, the litigation privilege extends to those noncommunicative actions which are necessarily related to that communicative act. In this case, because the claim for abuse of process was based on the communicative act of filing allegedly false declarations of service to obtain a default judgment, the postjudgment enforcement efforts, including the application for writ of execution and act of levying on property, were protected by the privilege. Because the Court of Appeal here came to the contrary decision that the act of levying on property was not protected by the privilege, we reverse its judgment.
I. FACTUAL AND PROCEDURAL HISTORY
This case arises from an action, filed as a cross-complaint, by Terry Rusheen against Attorney Barry E. Cohen, individually, and Barry E. Cohen, a professional corporation (collectively, Cohen), for abuse of process. The claims are based on Cohen's representation of clients in this case and in three earlier proceedings against Rusheen.
A. The Earlier Lawsuits.
In the first of the earlier proceedings, Niki Han and Maurice Abikzer applied for the issuance of a writ of possession of a house that they had bought from Rusheen's father (case No. ES004477). Rusheen, who lived there, refused to move out after escrow had closed. In addition, Han and Abikzer sought an order to show cause re harassment and a temporary restraining order against Rusheen. Rusheen also filed two actions against Han and Abikzer separately, seeking his own orders to show cause re harassment and temporary restraining orders (case Nos. ES004472 and ES004476).
During a hearing on the three cases, the trial court ordered Rusheen to move out and denied Rusheen's applications for temporary restraining orders. Han and Abikzer moved to declare Rusheen a vexatious litigant and to require him to post a bond in each of the three cases. The court issued a stay preventing Rusheen from filing any pleadings except those relevant to the pending vexatious litigant motions.
B. The Current Case.
Before the vexatious litigant motions were heard, Cohen (as Han's attorney) filed a new action (the case before us now) for property damage, fraud, assault and battery, and unjust enrichment (case No. EC022640).
After a hearing, the trial court found Rusheen to be a vexatious litigant and ordered Rusheen to post a $15,000 cash bond to avoid a default judgment in favor of Han and as a precondition to the filing of any pleadings. Rusheen did not file opposition to the vexatious litigant motion and did not appear at the hearing.
Cohen filed a declaration of service signed by a process server, which was later used to obtain Rusheen's default. The process server declared, under penalty of perjury, that he had personally served Rusheen with the summons, complaint, and order declaring Rusheen a vexatious litigant.
Cohen moved for a default judgment. After Rusheen failed to post the bond, a default judgment was entered. Han (through a Nevada attorney) filed a notice of foreign judgment in Nevada, where Rusheen had moved, and began executing on Rusheen's property. The Nevada attorney *520 applied for a writ of execution and levied on the judgment.
Rusheen moved to vacate the default judgment and the vexatious litigant orders on the ground the judgment was defective. Rusheen claimed he had no notice of the vexatious litigant hearing and denied he was served with the summons, complaint, and order declaring him a vexatious litigant. In opposition, Cohen submitted declarations that stated Rusheen had been personally served with the above documents and the motion to declare him a vexatious litigant. The trial court denied the motion to vacate the default judgment, finding that Rusheen had been personally served with the documents.
In an unpublished opinion, the Court of Appeal reversed the judgment. It held there was insufficient evidence that Rusheen was a vexatious litigant and that the trial court had no authority to order the posting of a $15,000 cash bond. It remanded the case and ordered the trial court to grant Rusheen's motion to vacate the default judgment and vexatious litigant orders.
On remand, Rusheen initiated the cross-complaint at issue hereagainst Cohen for abuse of process arising from his legal representation. After various procedural events, Rusheen filed a second amended cross-complaint, alleging that Cohen had made an illegal vexatious litigant motion against Rusheen, failed to serve the complaint properly, took an improper default judgment against him without proper notice, permitted his client to execute on the judgment in Nevada, and filed false declarations on the issue of service.
Cohen brought a special motion to strike the cross-complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16), asserting that there was no reasonable probability Rusheen would prevail because Cohen's conduct was privileged under Civil Code section 47, subdivision (b). The trial court agreed. It granted the motion, struck the cross-complaint against Cohen, and entered judgment for Cohen.
In an unpublished opinion, the Court of Appeal reversed the judgment. It held that the trial court improperly granted the anti-SLAPP motion to strike, finding that Cohen could be liable for abuse of process in enforcing a default judgment obtained through the filing of allegedly false proofs of service. In determining whether Cohen's conduct fell within the litigation privilege, the court followed Drum, supra,
We granted Cohen's petition for review to determine: (1) whether actions taken to collect a judgment, such as obtaining a writ of execution and levying on the judgment debtor's property, are protected by the litigation privilege as communications in the course of a judicial proceeding; and (2) whether a claim for abuse of process based on the filing of an allegedly false declaration of service is barred by the litigation privilege on the ground the claim is necessarily founded on a communicative act.[2]
*521 II. DISCUSSION
Cohen maintains that Rusheen's abuse of process claim is barred by the litigation privilege and that the trial court properly granted his anti-SLAPP motion (Code Civ. Proc., § 425.16). An appellate court independently reviews the trial court's order granting a special motion to strike under section 425.16. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002)
A. The Anti-SLAPP Statute.
A SLAPP suita strategic lawsuit against public participationseeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. (Briggs v. Eden Council for Hope & Opportunity (1999)
In evaluating an anti-SLAPP motion, the trial court first determines whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002)
If the court finds the defendant has made the threshold showing, it determines then whether the plaintiff has demonstrated a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc., supra,
B. The Tort of Abuse of Process.
The common law tort of abuse of process arises when one uses the court's process for a purpose other than that for which the process was designed. (5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 459, p. 547; see also Kappel v. Bartlett (1988)
"[T]he essence of the tort [is] . . . misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice." (Meadows v. Bakersfield S. & L. Assn. (1967)
C. The Litigation Privilege.
The litigation privilege is codified in Civil Code section 47 (section 47): "[a] privileged publication or broadcast is one made . . . [i]n any . . . judicial proceeding. . . ." (§ 47, subd. (b).) The privilege recognized in section 47 derives from common law principles establishing a defense to the tort of defamation. (Oren Royal Oaks Venture, supra,
"Although originally enacted with reference to defamation [citation], the privilege is now held applicable to any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution. [Citations.] Further, it applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved. [Citations.] [¶] The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]" (Silberg v. Anderson (1990)
Because the litigation privilege protects only publications and communications, a "threshold issue in determining the applicability" of the privilege is whether the defendant's conduct was communicative or noncommunicative. (Kimmel v. Goland *523 (1990)
The "[p]leadings and process in a case are generally viewed as privileged communications." (Navellier v. Sletten (2003)
However, the Court of Appeal further determined that the gravamen of the action was not the submission of false evidence. Instead, it was a conspiracy to enforce a judgment obtained through the use of perjured declarations of service which "culminated in the noncommunicative conduct of enforcing the judgment." Recognizing that there is a conflict in the case law about whether the litigation privilege applies to postjudgment collection activities, the Court of Appeal chose to follow Drum, supra,
D. Whether the Litigation Privilege Applies to Postjudgment Collection Activitiesthe Conflict in the Case Law.
Earlier cases have upheld actions for abuse of process involving allegedly improper collection practices without addressing the applicability of the litigation privilege. (See, e.g., Barquis, supra, 7 Cal.3d at pp. 103-104,
In Merlet, supra,
In O'Keefe, supra,
In Brown, supra,
In contrast, the Drum court later held that "wrongfully levying on property pursuant to a writ of execution is not subject to the litigation privilege." (Drum, supra,
E. The Litigation Privilege Protects the Communicative Act of Filing a Declaration of Service, the Gravamen of the Abuse of Process Claim in This Case.
Rusheen argues that the Courts of Appeal in Drum and in this case correctly determined that the wrongful act of levying on property in execution of judgment is a noncommunicative act in its "essential nature" and is thus unprivileged. However, even if levying on property involves a noncommunicative physical act, those courts failed to address the relevant question of whether the gravamen of the action was communicative or noncommunicative conduct.[3]
Drum assumed without analysis that the gravamen of the judgment debtor's cause *526 of action for abuse of process was based on the physical act of levying on property, rather than on the communicative process of applying for the writ of execution. But it is arguable that the gravamen of the action there was the judgment creditor's application for writ of execution in violation of the court-ordered stay, and that the subsequent levy on property during the stay merely resulted from the writ of execution. (Cf. Olszewski v. Scripps Health (2003)
Similarly, the Court of Appeal here concluded that "the filing of a perjured proof of service may have been communicative but executing on the resulting default judgment was not." It further concluded that "the gravamen of the action was a conspiracy to enforce a judgment obtained through the use of perjured declarations of service," which "culminated in the noncommunicative conduct of enforcing the judgment." It thus appears that the Court of Appeal identified two, rather than a single, gravamen of the action: (1) the alleged conspiracy; and (2) the actual enforcement by way of levy.
However, as Cohen points out, the Court of Appeal's reliance on an alleged conspiracy was misplaced. The second amended cross-complaint (the operative pleading here) no longer contained a claim of conspiracy against Cohen. The conspiracy cause of action had been previously dismissed without leave to amend the first amended cross-complaint. Additionally, a civil conspiracy does not give rise to a cause of action unless an independent civil wrong has been committed. The elements of an action for civil conspiracy are (1) formation and operation of the conspiracy and (2) damage resulting to plaintiff (3) from a wrongful act done in furtherance of the common design. (Doctors' Co. v. Superior Court (1989)
The Court of Appeal failed to identify any allegedly wrongful conduct by Cohen other than simply filing perjured declarations of service. Although the court stated that the conspiracy "culminated in the noncommunicative conduct of enforcing the judgment," enforcement of a judgment (in this case by way of levy) is simply the object of any civil action for damages. (Brown, supra,
On close analysis, the gravamen of the action was not the levying act, but the procurement of the judgment based on the use of allegedly perjured declarations of service. Because these declarations were communications "(1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action" (Silberg supra,
Extending the litigation privilege to postjudgment enforcement activities that are necessarily related to the allegedly wrongful communicative act is consistent with public policy considerations. The purposes of section 47, subdivision (b), are to afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments, and to avoid unending litigation (Silberg, supra, 50 Cal.3d at pp. 213-214,
Conversely, expansion of the litigation privilege here necessarily narrows the scope of the tort of abuse of process in the judgment enforcement context. (See Silberg, supra,
In an analogous context, we weighed the social benefits of creating a tort cause of action for the intentional first party spoliation of evidence against the costs and burdens it would impose. (Cedars-Sinai Medical Center, supra,
Similarly, with the litigation privilege, "it is desirable to create an absolute privilege . . . not because we desire to protect the shady practitioner, but because we do not want the honest one to have to be concerned with [subsequent derivative] actions. . . ." (Thornton v. Rhoden (1966)
Here, Rusheen's abuse of process claim poses a threat to the goal of finality of judgments. In denying Rusheen's motion to vacate the default judgment, the trial court found that Rusheen had been personally served with the documents and thus, that the declarations of service of process were not perjured. On the appeal of the default judgment, the Court of Appeal did not overturn that factual finding. Rusheen's abuse of process claima derivative tort for litigation-related misconductwould be another round of litigation to decide the same issue that had already been decided.
Moreover, the denial of an abuse of process claim is mitigated by the fact that Rusheen had adequate alternative remedies. Indeed, Rusheen exercised one of those remedies by successfully moving to set aside the default judgment. On remand, Rusheen will have an opportunity to defend against Han's claims. There were additional nontort remedies for the allegedly wrongful conduct: moving to recall and quash the writ of execution (see Brown, supra,
Finally, we note that the process itself of enforcing money judgments is subject to judicial supervision. After entry of judgment *529 and on application of the judgment creditor, the court clerk issues a writ of execution directed to the levying officer and to any registered process server. (Code Civ. Proc., § 699.510, subd. (a).) The levying officer must serve a copy of the writ of execution and notice of levy on the judgment debtor and return the writ to the court with a report of the officer's actions and an accounting of amounts collected and costs incurred. (Code Civ. Proc., §§ 700.010, 699.560, subd. (a).)
Given the alternative remedies for improper service and the procedural protections against improper enforcement, we agree with those cases that have applied the litigation privilege to limit the availability of the tort of abuse of process in the judgment enforcement context. (Brown, supra, 94 Cal.App.4th at pp. 49-51,
Accordingly, we conclude that if the gravamen of the action is communicative, the litigation privilege extends to noncommunicative acts that are necessarily related to the communicative conduct, which in this case included acts necessary to enforce the judgment and carry out the directive of the writ. (See Rubin, supra,
Here, because the execution of the judgment did not provide an independent basis for liability separate and apart from the filing of the false declarations of service, the gravamen of the action was the procurement of the judgment, not its enforcement. Thus, the enforcement of the judgment in reliance on the filing of privileged declarations of service was itself privileged. Because the trial court correctly found that there was no reasonable probability Rusheen's abuse of process claim would prevail on the ground Cohen's allegedly wrongful conduct was privileged (Civ. Code § 47, subd. (b)), it properly granted the anti-SLAPP motion (Code Civ. Proc., § 425.16), struck the cross-complaint against Cohen, and entered judgment in his favor.
III. DISPOSITION
We reverse the judgment of the Court of Appeal and remand the case to that court for further proceedings consistent with this opinion.
WE CONCUR: GEORGE, C.J., KENNARD, BAXTER, WERDEGAR, MORENO, JJ., and FLIER, J.[*]
NOTES
Notes
[1] In connection with the allegedly illegal vexatious litigant motion, the Court of Appeal determined that Rusheen had not submitted sufficient evidence to demonstrate that Cohen could be liable for abuse of process.
[2] In his answer brief, Rusheen argues that Cohen abused the legal process in connection with obtaining the vexatious litigant orders and other orders that are not at issue in this appeal. Because those claims were not presented or fairly included in the petition for review and Rusheen failed to file an answer to Cohen's petition for review, we do not address them. (Cal. Rules of Court, rule 29(b); In re Marriage of Cornejo (1996)
[3] Drum defined a levy on property as "the act of removing property" from one source and depositing it in another place controlled by the levying officer. (Drum, supra,
[*] Associate Justice of the Court of Appeal, Second Appellate District, Division Eight, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.