G.R v. INTELLIGATOR, G042006.

• Decision Date: 10 June 2010
• Docket Number: No. G042006.,G042006.
• Citation: 185 Cal.App.4th 606,110 Cal.Rptr.3d 559
• Court: California Court of Appeals Court of Appeals
• Parties: G.R., Plaintiff and Appellant, v. Irene INTELLIGATOR, Defendant and Respondent.

185 Cal.App.4th 606

110 Cal.Rptr.3d 559

G.R., Plaintiff and Appellant,

v.Irene INTELLIGATOR, Defendant and Respondent.

No. G042006.

Court of Appeal, Fourth District, Division 3, California.

June 10, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Lewis R. Crouse II, Santa Ana, for Plaintiff and Appellant.

Mathon & Rosensweig and Michelle Cooper, Beverly Hills, for Defendant and Respondent.

OPINION

MOORE, J.

The trial court granted defendant Irene Intelligator's special motion to strike (Code Civ. Proc. § 425.16) the complaint of plaintiff G.R. (Husband) and awarded Intelligator attorney fees and costs. It also denied Husband's motion for reconsideration of the attorney fee and costs award, due to lack of jurisdiction. Husband appeals from both rulings.

When Intelligator, an attorney representing Husband's ex-wife (Wife) in certain postmarital dissolution proceedings, filed a copy of Husband's credit report in support of a motion, Intelligator was clearly involved in petitioning activity within the meaning of Code of Civil Procedure section 425.16. This is so even though she admits to having violated California Rules of Court, rule 1.20 when she failed to redact personal identifiers before filing the credit report. Having demonstrated that the activity that formed the basis of Husband's causes of action was protected petitioning activity, the burden shifted to Husband to demonstrate a probability of success on his claims. He failed to meet this burden. In addition, he failed to show either that the trial court abused its discretion in awarding the attorney fees and costs or that it erred in denying his motion for reconsideration. We affirm.

I FACTS

Intelligator represented Wife in marital dissolution proceedings. Judgment of dissolution was entered and the court retained jurisdiction to address postdissolution matters including after-discovered debts.

Some time after the judgment of dissolution was entered, Wife went to purchase a car. However, her auto loan was denied when the lender discovered that Wife had an adverse credit report. The credit report disclosed significant outstanding medical bills of which Wife, a non-English-speaking Russian immigrant, had been unaware. She obtained a credit report on Husband and learned that the medical bills were not reflected on his credit report, only on hers. Wife took both credit reports to Intelligator, seeking her help in making Husband pay the bills.

Intelligator sent demand letters regarding the unpaid medical bills to Husband's attorney. Since payment was not forthcoming, Intelligator ultimately filed, in the marital dissolution proceedings, a motion to require Husband to pay the outstanding medical bills. Intelligator attached to the motion copies of the credit reports of both Husband and Wife. Intelligator concedes that the unredacted credit report of Husband disclosed certain personal identifiers. However, Husband himself had already made at least one of those personal identifiers public through the prior filing of various documents.

Husband filed a complaint against Intelligator, asserting causes of action for violation of Civil Code section 1785.19 and for invasion of privacy, based on Intelligator's filing of his unredacted credit report in the marital dissolution proceedings. He contended that the disclosure of personal identifiers violated California Rules of Court, rule 1.20.

Intelligator filed both a Code of Civil Procedure section 425.16 special motion to strike and a demurrer. The court granted the special motion to strike, making the demurrer moot. In addition, the court awarded Intelligator $6,840 in attorney fees and costs.

Husband filed a motion for reconsideration, to challenge the award of attorney fees and costs. The court denied the motion. On appeal, Husband challenges the ruling on the special motion to strike, the ensuing judgment including the award of attorney fees and costs, and the ruling on the motion for reconsideration. ¹

II DISCUSSION

A. Code of Civil Procedure Section 425.16:

“ ‘Section 425.16 provides for a special motion to strike “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).) “The Legislature enacted the anti-SLAPP statute to protect defendants, including corporate defendants, from interference with the valid exercise of their constitutional rights, particularly the right of freedom of speech and the right to petition the government for the redress of grievances.” [Citation.]’ [Citation.]” ( Turner v. Vista Pointe Ridge Homeowners Assn. (2009) 180 Cal.App.4th 676, 681-682, 102 Cal.Rptr.3d 750.)

“ ‘In analyzing a section 425.16 motion, the court engages in a two-step process. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.” [Citation.] The moving defendant meets this burden by showing the act underlying the plaintiff's cause of action comes within section 425.16, subdivision (b)(1). [Citation.] If the defendant meets this initial burden, the burden then shifts and the plaintiff must show a probability of prevailing on the claim. [Citation.] The plaintiff must demonstrate the complaint is both legally sufficient and is supported by a prima facie showing of facts sufficient to sustain a favorable judgment if the evidence submitted by the plaintiff is given credit. [Citation.] [¶] We review de novo whether section 425.16 protects the subject speech and whether [the plaintiff] demonstrated a probability he would prevail on his ... cause of action. [Citation.]’ [Citation.]” ( Turner v. Vista Pointe Ridge Homeowners Assn., supra, 180 Cal.App.4th at p. 682, 102 Cal.Rptr.3d 750.)

“ ‘A defendant can meet his or her burden [of showing that the challenged cause of action arises from protected activity] by demonstrating the acts underlying the plaintiff's cause of action fit within one of the categories of section 425.16, subdivision (e). [Citation.] Section 425.16, subdivision (e) defines an act in furtherance of the defendant's right of petition or free speech in connection with a public issue to include: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.’ ” [Citation.]” ( Turner v. Vista Pointe Ridge Homeowners Assn., supra, 180 Cal.App.4th at p. 682, 102 Cal.Rptr.3d 750.)

B. Application of Statute: (1) Introduction

Husband claims that Intelligator cannot meet her initial burden to show, under the first prong of the test, that the challenged causes of action arise from protected activity. He therefore contends that the second prong of the test, that is, whether he can show a probability of prevailing on his claims, is irrelevant. Consequently, he does not specifically argue that he could meet the burden to show a probability of prevailing, were we to hold that the burden had shifted to him. At the same time, Husband responds to Intelligator's argument that he cannot demonstrate a probability of prevailing on his claims because her action was protected by the Civil Code section 47, subdivision (b) litigation privilege. He argues that the privilege does not protect her. We disagree with Husband's analysis, as we shall show.

(2) First prong-protected activity

[1] With respect to the first prong of the test, concerning protected activity, Intelligator's filing of the credit report in connection with a postdissolution motion falls squarely within the language of Code of Civil Procedure section 425.16, subdivision (e)(1) and (2). “Under the plain language of section 425.16, subdivision (e)(1) and (2), as well as the case law interpreting those provisions, all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute. [Citations.]” ( Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480, 99 Cal.Rptr.3d 394 ( Cabral ).)

Husband nonetheless argues that even when an attorney files documents in a pending proceeding, the act of doing so is not necessarily protected activity. He contends that, in a case such as this, where the attorney violates a rule of court and discloses private information that it was not necessary to disclose, the attorney's action exceeds the boundaries of protected activity. We shall see.

As our Supreme Court has stated, “where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff's action arises from activity by the defendant in furtherance of the defendant's exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action.” ( Flatley v. Mauro (2006) 39 Cal.4th 299, 320, 46 Cal.Rptr.3d 606, 139 P.3d 2 ( Flatley ).) The question here is whether Intelligator's concession that she violated California Rules of Court, rule 1.20 in filing an unredacted credit report bars her from obtaining...