Kenne v. Stennis

• Decision Date: 21 October 2014
• Docket Number: B242262
• Citation: 230 Cal.App.4th 953,179 Cal.Rptr.3d 198
• Court: California Court of Appeals Court of Appeals
• Parties: Kathleen A. KENNE, Plaintiff, Respondent, and Cross-Appellant, v. Kevin P. STENNIS et al., Defendants, Appellants, and Cross-Respondents.

230 Cal.App.4th 953

179 Cal.Rptr.3d 198

Kathleen A. KENNE, Plaintiff, Respondent, and Cross-Appellant

v.Kevin P. STENNIS et al., Defendants, Appellants, and Cross-Respondents.

B242262

Court of Appeal, Second District, Division 5, California.

Filed October 21, 2014

Law Office of Helaine Hatter and Helaine Hatter for Defendants, Appellants, and Cross-respondents.

Law Office of Kathleen A. Kenne and Kathleen A. Kenne for Plaintiff, Respondent, and Cross-appellant.

MOSK, J.

INTRODUCTION

Defendants, appellants, and cross-respondents Kevin P. Stennis (Stennis) and his wife Helaine Hatter (Hatter)¹ appeal from that portion of the trial court's order denying, in part, their Code of Civil Procedure section 425.16² (anti-SLAPP statute³ ) special motion to strike claims against them arising out of Hatter's police reports and her filing of two civil harassment petitions under section 527.6 against plaintiff, respondent, and cross-appellant Kathleen Kenne (plaintiff). Plaintiff cross-appeals from that portion of the trial court's order granting, in part, defendants' special motion to strike.

On the appeal, we hold that the trial court erred when it denied the special motion to strike as to the conspiracy, malicious prosecution, and intentional infliction of emotional distress causes of action. The conduct underlying those causes of action is protected activity under the anti-SLAPP statute, and plaintiff cannot prevail on the merits because her malicious prosecution claim cannot be based on the filing of a petition under section 527.6 and the conduct underlying plaintiff's other tort claims is privileged under Civil Code section 47, subdivision (b). On the cross-appeal, we hold that the trial court did not err in granting the special motion to strike as to the abuse of process, libel, and slander causes of action because those claims arise from protected activity, and plaintiff cannot prevail on them as a matter of law as they are barred by the litigation privilege in Civil Code section 47, subdivision (b). We therefore affirm that portion of the order granting the special motion to strike, reverse that portion of the order denying the special motion to strike, and remand the matter to the trial court with instructions to enter a new order granting the special motion to strike in its entirety.

FACTUAL BACKGROUND

A. Allegations of Verified First Amended Complaint

In the “general allegations” of the first amended complaint, plaintiff asserted the following facts. After plaintiff obtained a jury verdict and judgment against Stennis's mother (mother), plaintiff began collection efforts, including seeking judgment debtor examinations of Stennis and mother based on alleged fraudulent transfers of mother's assets to Stennis. After several unsuccessful attempts by the Los Angeles County sheriff's department to serve personally Stennis and mother with a subpoena and order for judgment debtor examinations, the Sheriff's Department concluded that defendants were evading service.

Plaintiff and her employee conducted a “stakeout” at defendants' residence in an effort to personally serve the subpoena and order on Stennis. When Hatter arrived at her home, plaintiff's employee attempted to effect substituted service on Hatter of the subpoena and order directed at Stennis. While plaintiff remained seated in her car, her employee approached Hatter and attempted to hand her the service package in a large envelope. When Hatter refused to accept the envelope, the employee dropped it at Hatter's feet on the lawn. Hatter picked up the envelope, approached plaintiff's car, and threw the envelope through the passenger window, nearly striking plaintiff's employee in the face. Hatter then began yelling protests and profanities at plaintiff and also took photographs of plaintiff. When Hatter told plaintiff that she was calling the police, plaintiff decided to wait for the police and explain her actions. A police officer arrived and plaintiff explained to the officer that her employee had legally served civil process⁴ on Hatter, and the events surrounding that service. Plaintiff and her employee then left the scene. Plaintiff was informed and believed that Stennis was present in defendants' home during the incident and that defendants conspired to file a false police report against plaintiff with the responding officer.

Shortly after these events, Hatter “conspired with” Stennis to evade service by filing without probable cause, a civil harassment petition under section 527.6 in the Southwest District, Inglewood branch, of the Los Angeles County Superior Court seeking a temporary restraining order (TRO) and preliminary injunction against plaintiff in Hatter v. Kenne (2010, No. YS021314) (Inglewood action). The Inglewood action was intended to prevent lawful collection efforts by plaintiff, including service of a judgment debtor examination subpoena and order. Based on multiple fraudulent representations contained in the papers in support of the TRO and injunction requests, the trial court issued a TRO against plaintiff that remained in effect for 23 days.

The trial court held an evidentiary hearing. At the conclusion of the half-day proceeding, the trial court dissolved the TRO, denied the request for a preliminary injunction, and dismissed the civil harassment action. Plaintiff was awarded her costs.

Within a month, Hatter filed a second civil harassment petition and request for a TRO in the Central District of the Los Angeles County Superior Court in Hatter v. Kenne (2010, No. BS128699) (Central District action). The petition, which was never served on plaintiff, was based on the same alleged acts that were asserted in the Inglewood action.⁵ The second petition was an attempt by defendants to circumvent the dismissal order in the Inglewood action and to continue to evade lawful service of process. The request for the TRO in the Central District action was denied summarily, and the action was dismissed.

In support of her first cause of action for conspiracy against defendants, plaintiff incorporated by reference all of her general allegations and alleged that defendants conspired to avoid her lawful collection efforts by filing false police reports, filing malicious petitions for civil harassment, and wrongfully obtaining a TRO against plaintiff. According to plaintiff, the false and abusive police reports, civil harassment petitions, and requests for TRO's lacked merit and were filed without probable cause.

In support of her second cause of action for malicious prosecution against Hatter, plaintiff incorporated by reference the general allegations and the conspiracy allegations. Plaintiff further alleged that Hatter, conspiring with Stennis, filed the civil harassment petitions in the Inglewood and Central District actions maliciously and without probable cause.

In support of her third cause of action, which was for abuse of process, plaintiff incorporated by reference all of the prior allegations of the first amended complaint and alleged that Hatter and Stennis conspired to file two false and unprivileged complaints of civil harassment against plaintiff and to obtain a TRO against plaintiff without good cause. According to plaintiff, Hatter falsely represented in court that she had been advised and instructed by an Inglewood police officer to file the first civil harassment petition and TRO request. The advice from the officer was based on false information provided to him by defendants. The ulterior motive and purpose of defendants' misuse of process was to obtain an unjustified TRO and preliminary injunction against plaintiff to avoid service of process on defendants and gain an unfair advantage over plaintiff in connection with her collection efforts against mother. The civil harassment petitions and police report were hearsay, untrue, and unfounded. As a result, the petitions were dismissed on the merits.

In support of her fourth cause of action for libel per se, plaintiff incorporated each of the prior allegations of the first amended complaint and alleged that defendants filed a false written police report and thereafter submitted that report to the trial courts as the primary supporting evidence for the two civil harassment petitions. In the report, defendants falsely stated that plaintiff had engaged in improper and illegal service of civil process, thereby defaming her.

In support of her fifth cause of action for slander per se, plaintiff incorporated each of the prior allegations of the first amended complaint and alleged that defendants made a false oral police report stating that plaintiff had committed illegal acts in conjunction with the lawful service of civil process on Stennis. Plaintiff alleged that the statement was defamatory per se.

In support of her sixth cause of action for intentional infliction of emotional distress, plaintiff incorporated each of the prior allegations of the first amended complaint and alleged that defendants conspired to hinder or delay plaintiff in the collection of her judgment against mother and fraudulently induced mother to transfer her real property and other assets to Stennis. According to plaintiff, among other things, defendants maliciously prosecuted two civil harassment petitions against plaintiff, abused the TRO process, and filed false oral and written police reports. Plaintiff alleged that as a direct and proximate result of defendants' acts, as alleged in support of each of the six causes of action in the first amended complaint, she suffered severe emotional distress.

B. Plaintiff's Declaration

In her declaration in opposition to defendants' special motion to strike, plaintiff provided the following information. In September 2007, plaintiff entered into an agreement with mother to settle a civil action, Kenne v. Stennis (2009, No. SC092747.) Almost immediately thereafter, however, Hatter prepared a grant deed that transferred mother's residence to Stennis for no consideration, conduct that allegedly breached...