Rusheen v. Cohen
| Decision Date | 23 February 2006 |
| Docket Number | No. S123203.,S123203. |
| Citation | 128 P.3d 713,37 Cal.4th 1048,39 Cal.Rptr.3d 516 |
| Court | California Supreme Court |
| Parties | Terry RUSHEEN, Cross-Complainant and Appellant, v. Barry E. COHEN et al., Cross-Defendants and Respondents. |
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.
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) 94 Cal.App.4th 40, 113 Cal.Rptr.2d 891 (Brown), the Court of Appeal held that the privilege protects both the process of applying for the writ of execution and the levy on the judgment debtor's property, as an act of carrying out the writ. On the other hand, in Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, 132 Cal.Rptr.2d 602 (Drum), the Court of Appeal held that, although the privilege protects the application for the writ of execution, it does not extend to the subsequent, noncommunicative acts in levying on the property. We granted review to resolve the conflict.
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.
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.
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.
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 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 here—against 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, 107 Cal.App.4th 1009, 132 Cal.Rptr.2d 602, rather than Brown, supra, 94 Cal.App.4th 40, 113 Cal.Rptr.2d 891. It found that Cohen's filing of allegedly perjured documents fell within the litigation privilege as communicative conduct, but that his participation in the alleged conspiracy to execute on the resulting improper default judgment was unprivileged, noncommunicative conduct.1
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
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) 95 Cal.App.4th 921, 929, 116 Cal.Rptr.2d 187.) In evaluating the trial court's order, we discuss the general legal principles first and then their application to this case. As explained below, we agree with Cohen's contention.
A SLAPP suit—a strategic lawsuit against public participation—seeks 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) 19 Cal.4th 1106, 1109, fn. 1, 81 Cal.Rptr.2d 471, 969 P.2d 564.) The Legislature enacted Code of Civil Procedure section 425.16—known as the anti-SLAPP statute—to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 865, 44 Cal. Rptr.2d 46.)
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) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.) Under Code of Civil Procedure section 425.16 "[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 . . . shall be subject to a special motion to strike. . . ." (Code Civ. Proc., § 425.16, subd. (b)(1).) "A cause of action `arising from' defendant...
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