Opinion
F075962
12-19-2019
S.G. et al., Plaintiffs, Cross-defendants and Respondents, v. ROGER DUNCAN, Defendant, Cross-complainant and Appellant; MICHAEL GRAVES et al., Cross-defendants and Respondents.
Roger Duncan, in pro. per., for Defendant, Cross-complainant and Appellant. McCormick, Barstow, Sheppard, Wayte & Carruth, Timothy J. Buchanan and Devon R. McTeer for Plaintiffs, Cross-defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCV011044)
OPINION
APPEAL from an order of the Superior Court of Madera County. James E. Oakley, Judge. Roger Duncan, in pro. per., for Defendant, Cross-complainant and Appellant. McCormick, Barstow, Sheppard, Wayte & Carruth, Timothy J. Buchanan and Devon R. McTeer for Plaintiffs, Cross-defendants and Respondents.
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This is the second of two appeals currently pending before this court arising from litigation between appellant Roger Duncan and respondent S.G. Both cases raise issues under California's anti-SLAPP statute, Code of Civil Procedure section 425.16. In this appeal, Duncan contends the trial court wrongly granted respondent's anti-SLAPP motion seeking to dismiss counterclaims he filed in response to her lawsuit against him. In the companion appeal, Duncan claims the trial court wrongly denied his anti-SLAPP motion against respondent. For the reasons set forth below we affirm the grant of respondent's anti-SLAPP motion.
SLAPP is an acronym for litigation considered to be a "strategic lawsuit against public participation." California's anti-SLAPP statute is designed to preclude such strategic efforts to punish public participation.
All future statutory references are to the Code of Civil Procedure, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Sometime between 2015 and 2016, Duncan and respondent were romantically involved. The parties differ as to how long the relationship lasted and what was discussed between the two regarding Duncan's later actions in writing and publishing a book detailing sexual experiences allegedly involving respondent. According to Duncan, the parties planned the book and agreed to its publication. According to respondent, Duncan concocted the stories and the book as part of a pattern of harassment following the relationship's end. We need not resolve those disputes here, but we do note that respondent received a domestic violence restraining order against Duncan that issued in September 2016.
In October 2016, Duncan published the principal book at issue under respondent's name and included her contact information. The book allegedly detailed her sexual history and was distributed in her community. Respondent filed the underlying lawsuit on October 19, 2016, asserting claims of libel, intentional and negligent infliction of emotional distress, false light, appropriation, and violations of various civil and penal codes. As part of this litigation, respondent obtained a preliminary injunction in the case in November 2016. Around the same time, Duncan was arrested for violating the domestic violence restraining order. He was charged with felony stalking, harassment, and other charges. His preliminary hearing on these charges, at which respondent testified, was on November 15, 2016, and he was held over for trial.
Although not clear in the record, respondent's counsel contends that Duncan ultimately pled guilty to the charge of felony stalking.
Duncan filed a general denial and cross-complaint on November 22, 2016. He later filed a first amended cross-complaint on March 1, 2017. The first amended cross-complaint contained new claims alleging the malicious institution of civil proceedings (second cause of action) and an intentional tort (third cause of action), and also requested exemplary damages. The new allegations were based on assertions that respondent and her counsel in this matter "conspired to make false and fraudulent statements about [Duncan] to law enforcement" in order to both have a restraining order issued against him and have him arrested, and that both respondent and her counsel conspired to and did commit "perjury in a preliminary hearing about each and every act of [the] cross-complaint in order to continue the incarceration of [Duncan]." In making these claims, Duncan added respondent's counsel to the complaint.
Respondent and her counsel filed their anti-SLAPP motion on April 13, 2017, seeking to dismiss the second and third causes of action as well as all claims against counsel. The trial court held a hearing on May 11, 2017, at which time it allegedly made an oral ruling. On June 12, 2017, the court issued an order granting respondent's anti-SLAPP motion with respect to the second and third causes of action and to all allegations against counsel. This timely appeal followed.
Duncan has not designated the transcript from this hearing as part of this appeal or made any reference to it. We find it unnecessary for resolution of this appeal. (See Cal. Rules of Court, rule 8.130(a)(4).)
DISCUSSION
Duncan challenges the trial court's ruling that his second and third causes of action should be dismissed under the anti-SLAPP law. Although he pays lip service to the fact respondent's counsel was named in the first amended cross-complaint, he provides no specific argument as to how counsel could be liable for statements made to the court or law enforcement in this matter. Rather, in his arguments, Duncan contends the anti-SLAPP laws cannot be invoked because respondent's alleged conduct is criminal, and that Duncan has provided evidence of a prima facie case of malicious prosecution and intentional tort based on his version of the facts. In reply, Duncan further contends that application of the anti-SLAPP statute operates as an impermissible prior restraint to the publication of his books. Standard of Review
We review de novo the trial court's substantive ruling to grant or deny an anti-SLAPP motion. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325 (Flatley).)
A challenged order or judgment of the trial court is presumed to be correct on appeal, and it is the appellant's burden to affirmatively demonstrate the existence of a reversible error or a clear abuse of discretion. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557.) Respondent's Anti-SLAPP Motion Was Properly Granted
Upon review, we see no error in the trial court's decision to grant respondent's anti-SLAPP motion as to the second and third causes of action and all claims against respondent's counsel.
Overview of the Anti-SLAPP Statute
Section 425.16, subdivision (b)(1), provides: "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 Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) An act in furtherance of a person's right of petition or free speech is broadly defined by section 425.16, subdivision (e), to include the following: "(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 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, or (4) 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." (§ 425.16, subd. (e).)
On the merits, resolution of an anti-SLAPP motion follows 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.... [Second, if] the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) " 'The defendant has the burden on the first issue ... the plaintiff has the burden on the second issue.' " (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.) In our review, " '[w]e consider "the pleadings, and supporting and opposing affidavits ... upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) However, we neither "weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by plaintiff as a matter of law." ' " (Flatley, supra, 39 Cal.4th at p. 326.)
The Challenged Causes of Action Arise from Protected Activity
Duncan's brief admits that the causes of action subject to the anti-SLAPP motion arose because "Respondent made false statements for the purpose of causing the arrest and incarceration of [Duncan]." Duncan contends that these statements cannot be protected by the anti-SLAPP law because they are illegal acts under Penal Code section 148.5 and similar federal laws. Although Duncan provides scant legal authority, he does cite to Flatley as part of his argument that there is "no constitutionally protected conduct in a party or parties making a false report to law enforcement."
Flatley, however, does not resolve this case. In Flatley our Supreme Court was tasked with determining whether conduct that the court deemed illegal extortion as a matter of law was still protected under the first prong of the anti-SLAPP law analysis because it was related to a potential forthcoming litigation and therefore potentially subject to protection under the litigation privilege of Civil Code section 47, subdivision (b). (Flatley, supra, 39 Cal.4th at p. 330.) Unsurprisingly, the court held it was not. In doing so, however, the court was clear on the narrow nature of its holding. The court explained that its decision only applied where "either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law." (Id. at p. 320.) In all other circumstances, while the anti-SLAPP statute and litigation privilege are not coextensive, there is "a relationship between the litigation privilege and the anti-SLAPP statute." (Flatley. at p. 322.) In the first step of the analysis, the litigation privilege can inform a court whether certain conduct generally falls within the scope of the anti-SLAPP statutes protection of "statements made before, or in connection with, an issue pending before an official proceeding." (Id. at p. 323.) And in the second step, "in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing." (Ibid.)
In this case, Duncan admits there are conflicting views on whether respondent's statements were, in fact, false, noting there "are diametrically opposing and conflicting declarations raising issues of fact." This case is thus not like Flatley, where the illegality of the conduct could be determined as a matter of law. Rather, we find this case is controlled by Zucchet v. Glardi (2014) 229 Cal.App.4th 1466 (Zucchet). Zucchet involved an assertion that the anti-SLAPP statute should not bar a claim for malicious prosecution where the defendant had told prosecutors and the court about an allegedly illegal $10,000 payment because, according to the plaintiff, that statement was false and thus an illegal act that could not constitute a valid exercise of the constitutional right to free speech. (Zucchet, at pp. 1475, 1477.) The court rejected this argument, noting specifically that it could not presume the falsity of the statements because the plaintiff bore the burden of proof on the first step and no evidence conclusively proved the statements were false. (Id. at pp. 1479-1480.)
This case is not materially different. The statements underlying the allegedly illegal and tortious conduct arose in the context of complaints made to law enforcement and testimony at a hearing about Duncan's alleged violations of a restraining order, both of which are clearly covered by the anti-SLAPP statute. (See Zucchet, supra, 229 Cal.App.4th at p. 1477 [collecting cases showing statements made to investigators, prosecutors, or the court in the context of civil or criminal proceedings are protected by the anti-SLAPP law].) Duncan has offered no evidence or argument that these statements are false or illegal as a matter of law and concedes that their falsity is a contested issue in this case. Indeed, these statements were apparently sufficiently reliable to support charges for violation of the restraining order issued against Duncan. As such, similar to Zucchet, respondent has met her burden of demonstrating the conduct at issue arises out of protected First Amendment rights. (Zucchet, at p. 1480.)
Duncan Has Not Demonstrated a Probability of Prevailing
As respondent has demonstrated the present lawsuit arises out of protected conduct, the burden shifts to Duncan to demonstrate a probability of prevailing on the relevant claims. Duncan asserts that he has made such a showing by submitting his verified complaint and an affidavit detailing his version of the facts in this case. He contends that his assertions must be taken as true and thus, definitively show he could prevail on his claims. Respondent argues, however, that Duncan not only failed to support any of his factual claims, but that those claims are irrelevant because the conduct at issue is subject to the absolute protection of the litigation privilege contained at Civil Code section 47, subdivision (b), meaning Duncan cannot overcome a clear defense to his claims.
As explained in Flatley, " 'The principal purpose of [Civil Code] section [47, subdivision (b)] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.' [Citation] Additionally, the privilege promotes effective judicial proceedings by encouraging ' "open channels of communication and the presentation of evidence" ' without the external threat of liability [citation], and 'by encouraging attorneys to zealously protect their clients' interests.' [Citation.] 'Finally, in immunizing participants from liability for torts arising from communications made during judicial proceedings, the law places upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result.' " (Flatley, supra, 39 Cal.4th at pp. 321-322, citing Silberg v. Anderson (1990) 50 Cal.3d 205, 213-214.) "To accomplish these objectives, the privilege is 'an "absolute" privilege, and it bars all tort causes of action except a claim of malicious prosecution.' " (Flatley, at p. 322.)
Although not identical in scope with the anti-SLAPP laws, with respect to the second prong of the anti-SLAPP law analysis, Flatley notes the litigation privilege is relevant "in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing." (Flatley, supra, 39 Cal.4th at p. 323.) With respect to the intentional tort claim and all but the malicious prosecution assertion against respondent's counsel, we agree with respondent that the litigation privilege is an applicable defense to the claims at issue in this appeal. Duncan concedes that his causes of action depend upon claims that respondent provided false complaints to law enforcement and false testimony at a preliminary hearing regarding Duncan's conduct in violation of a domestic violence restraining order. This conduct is absolutely protected by the litigation privilege. (See Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913 ["Although originally applied only to defamation actions, the privilege has been extended to any communication, not just a publication, having 'some relation' to a judicial proceeding, and to all torts other than malicious prosecution.... 'The privilege extends beyond statements made in the proceedings, and includes statements made to initiate official action.' "].)
Duncan identifies no facts suggesting the underlying conduct is not protected by the litigation privilege and no argument opposing this position. As respondent has identified an absolute defense to the allegations made by Duncan, we need not resolve his claim that his version of the facts must be accepted as true and all disputes resolved in his favor. Even if we accept his facts as correct, Duncan's assertions of tortious conduct remain barred by the defensive assertion of the litigation privilege.
We next turn to Duncan's malicious prosecution claim. In such actions, the litigation privilege is not an absolute bar. (Flatley, supra, 39 Cal.4th at p. 322.) However, to prevail on a malicious prosecution claim, the " 'plaintiff must demonstrate "that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in []plaintiff's, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations]." ' " (Zucchet, supra, 229 Cal.App.4th at p. 1481.) Duncan's claims in this case fail to provide any evidence on the requirement of the first element that the actions against him were pursued to a legal termination in his favor. Rather, the record demonstrates that the trial court has previously reviewed allegations regarding Duncan's conduct multiple times, in regard to the initial restraining order and the preliminary injunction relating to respondent's lawsuit, and found the allegations against him credible. Further, with respect to the issue of a favorable determination on the specific actions subject to suit, Duncan's own cross-complaint alleges that the actions involved were done to "continue [his] incarceration" but makes no allegation suggesting such efforts failed. We have been pointed to no evidence in the record, and found none, that demonstrates Duncan prevailed in any legal prosecutions brought against him. Accordingly, Duncan has failed to demonstrate any probability of success on the merits of his claim.
Respondent notes that Duncan's claims do not mention the assertions against McCormick Barstow specifically, and thus any argument has been abandoned. (See Behr v. Redmond (2011) 193 Cal.App.4th 517, 538.) Duncan does not contest this claim in reply although his opening brief does generally refer to the conduct at issue in a context that would potentially include counsel's actions. While we agree that such claims should be deemed abandoned for lack of argument, we also note that any claims against counsel would also fail on the merits for the reasons discussed herein.
As part of his arguments, Duncan claims the anti-SLAPP statute violates the Fourteenth Amendment's due process protections by cutting short lawsuits before discovery. This argument has been previously rejected by courts in this state because the statute itself permits the courts to order specified discovery if needed. (§ 425.16, subd. (g); see Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 867-868.) None of Duncan's arguments persuade us this long-standing precedent is erroneous. Similarly, Duncan contends in reply that the anti-SLAPP statute works as a prior restraint to his First Amendment rights to free speech. This argument fails on the facts, as Duncan's own briefing shows he had already published the works in question prior to the invocation of the anti-SLAPP statute. As a logical matter then, any resulting legal action could not operate as a prior restraint.
Finally, we reject Duncan's attempted reliance in reply on De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845. In De Havilland, the claims concerned a violation of the statutory right of publicity, the common law tort of misappropriation, and a false light invasion of privacy with respect to a production referencing a well-known actress. As a result, the issues considered involved how to determine a public figure's chances of prevailing when suing over the creation of television programs based on historical events. (Id. at pp. 857-870.) Nothing in the case dealt with the litigation privilege or a malicious prosecution claim, and we find none of the discussion relevant to this matter. Thus, the analysis in De Havilland provides no support for Duncan's positions.
DISPOSITION
The order is affirmed. Costs are awarded to respondent.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
POOCHIGIAN, J. /s/_________
DETJEN, J.