Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC091160. Allan J. Goodman, Judge.
Janet H. Winston, in pro. per., for Plaintiff and Appellant.
Simmonds & Narita, Tomio B. Narita and Jeffrey A. Topor for Defendants and Respondents.
ZELON, J.
This appeal arises out of a tort action filed by Appellant Janet H. Winston (“Winston”) against Respondents Unifund CCR Partners (“Unifund”), Law Offices of Kenosian & Miele (“Kenosian & Miele”) and Kenneth J. Miele, Esq. (“Miele”) (collectively “Respondents”). In a prior proceeding, Unifund brought a collection action against Winston to recover on a credit card debt. When Winston failed to file a responsive pleading to Unifund’s complaint, the trial court entered a default judgment against her. Winston thereafter brought a separate action for fraud and emotional distress against Unifund and its attorneys in the collection suit, Kenosian & Miele and Miele. She alleged that Unifund and its attorneys made false representations in the collection action and improperly served her with the complaint, thereby obtaining a default judgment. In response to Winston’s lawsuit, Unifund and its attorneys filed motions for judgment on the pleadings. The trial court granted the motions with prejudice on the grounds that Winston’s tort claims were precluded by the litigation privilege set forth in Civil Code section 47, subdivision (b). Because we conclude that the litigation privilege barred Winston’s claims as a matter of law, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Unifund’s Collection Action
On August 31, 2005, Unifund, acting through its attorneys Kenosian & Miele and Miele, filed a limited civil complaint against Winston for breach of contract. Unifund sought to collect the unpaid balance that Winston allegedly owed on two credit cards that had been issued to her by Providian National Bank (“Providian”). Unifund alleged that Providian was the original creditor on Winston’s debt and that, prior to the commencement of the action, Unifund had “acquired all rights, title and interest in the obligation upon which this suit is brought and is the legal holder thereof.” Unifund identified its legal name in the complaint as “Unifund CCR Partners, a New York Partnership.”
According to Winston, Unifund did not properly serve her with a summons and complaint at any time in the collection action. Rather, Unifund served the complaint on Winston’s son at his apartment in Los Angeles, an address where Winston never had resided nor received any mail. Winston’s son informed her of the complaint on or about September 3, 2005. He also notified Unifund in a letter dated September 12, 2005, that his mother never had lived at that address. Winston assumed that Unifund would serve her at her correct address in Los Angeles once it received her son’s letter and that she then would respond to the complaint.
On November 3, 2005, acting in pro per, Winston filed an affidavit with the Los Angeles County Superior Court in which she advised the court that she had not been served with the complaint in the collection action. She also wrote a letter to the Presiding Judge of the Superior Court regarding the alleged improper service, and in response, she was directed to address her concern to Judge Yvette Palazuelos. Winston thereafter filed a second affidavit with the court on December 12, 2005, in which she requested a meeting with Judge Palazuelos and Unifund’s attorney to discuss service. However, Winston filed neither a motion to quash service of summons at any time nor a responsive pleading.
On December 22, 2005, the clerk of the court entered a default judgment against Winston based on her failure to respond to the complaint. The judgment awarded Unifund $12,261.55 in damages, $2,988.10 in interest, $1,005.00 in attorneys’ fees, and $352.50 in costs. Winston learned of the default judgment the following day. Winston did not bring a motion to vacate the judgment or an independent action to set aside the judgment for lack of jurisdiction. Instead, she filed an appeal with the Appellate Division of the Superior Court.
Between August and December 2005, Winston was caring for her ailing mother. Winston’s mother died on December 14, 2005, and was buried on December 22, 2005, the same day that the default judgment was entered.
On August 18, 2006, the Appellate Division affirmed the default judgment on the grounds that Winston could not challenge jurisdiction for the first time on appeal because her arguments regarding improper service raised factual issues that first had to be considered by the trial court. The appellate court concluded that Winston had not properly challenged jurisdiction in the trial court because she never sought to quash service of summons or to vacate the default judgment. The appellate court also concluded that Winston’s two affidavits could not be construed as a pleading or motion that would preclude the entry of a default.
II. Winston’s Tort Action
On September 21, 2006, Winston filed a separate lawsuit against Unifund, Kenosian & Miele, and Miele, alleging causes of action for fraud and emotional distress. Winston’s fraud claim was based primarily on her allegation that Unifund falsely represented in the collection action that it had acquired her credit card debt from Providian. Winston contended that Unifund could not have legally purchased the debt from Providian because Providian previously had agreed to “write off” the debt based on Winston’s stated inability to pay. In support of her fraud and emotional distress claims, Winston also alleged that Unifund falsely represented that she had been properly served with the complaint in the collection action to prevent Providian and the public from discovering that Unifund was attempting to illegally collect on the debt. Winston asserted that Unifund’s fraudulent representations regarding service allowed it to obtain a default judgment against her, causing her emotional distress.
After answering the complaint, Unifund, Kenosian & Miele and Miele brought motions for judgment on the pleadings, asserting that Winston’s fraud and emotional distress claims were barred by the litigation privilege. In her opposition to Unifund’s motion, Winston attached a proposed first amended complaint in which she attempted to raise a new theory of fraud, namely that Unifund had falsely represented in the collection action that it was registered as a “New York Partnership.” Winston alleged that she recently had been informed by the New York Department of State that no such entity was registered to do business in the state, and asserted that this new evidence supported her claim that Unifund never had the authority as a “New York Partnership” to file the collection action against her. The trial court granted the motions with prejudice and entered judgment in favor of Unifund and its attorneys. Winston filed a timely appeal.
Winston’s allegation that Unifund was not registered as a New York partnership was based on a letter she received from the New York Department of State which stated that it had “no record of a corporation, limited partnership or limited liability company filed in this office with the name UNIFUND CCR PARTNERS.” Winston attached this letter as an exhibit to her proposed first amended complaint. Although she included the proposed amended complaint in her opposition to Unifund’s motion for judgment on the pleadings, she never brought a separate motion for leave to file an amended complaint with the court.
DISCUSSION
I. Standard Of Review
A judgment on the pleadings in favor of the defendant is appropriate when the complaint fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 438, subd. (c)(1)(B)(ii).) “A motion for judgment on the pleadings is equivalent to a demurrer and is governed by the same de novo standard of review. [Citations.]” (Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672.) Accordingly, we treat the pleadings as admitting all material facts properly pleaded, but we do not assume the truth of contentions, deductions or conclusions of fact or law. (Ibid.) We exercise our independent judgment to determine whether the complaint, as it stands, alleges facts sufficient to state a cause of action under any legal theory. (McCutchen v. City of Montclair (1999) 73 Cal.App.4th 1138, 1144.)
When a trial court grants a motion for judgment on the pleadings in favor of the defendant, it may do so with or without leave to file an amended complaint. (Code Civ. Proc. § 438, subd. (h)(1).) Where leave is not granted, we must determine whether there is a reasonable possibility that the defect can be cured by amendment. (Baughman v. State of California (1995) 38 Cal.App.4th 182, 187.) The burden of showing that such a reasonable possibility exists rests squarely with the plaintiff. (Ibid.) “[H]owever, leave to amend should not be granted where, in all probability, amendment would be futile. [Citation.]” (Vaillette v. Fireman’s Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685.)
II. Scope And Purpose Of The Litigation Privilege
“The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a ‘publication or broadcast’ made as part of a ‘judicial proceeding’ is privileged.” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) The privilege is absolute in nature and “is now held applicable to any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg).) It thus “has been applied in ‘numerous cases’ involving ‘fraudulent communication or perjured testimony,’” including actions for fraud and intentional infliction of emotional distress. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322; see, e.g., Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 23-26 [fraud claim based on false representations to induce settlement]; Carden v. Getzoff (1987) 190 Cal.App.3d 907, 912-915 [intentional infliction of emotional distress claim based on false evidence]; Pettitt v. Levy (1972) 28 Cal.App.3d 484, 488-491 [fraud and intentional infliction of emotional distress claims based on filing of forged documents].) Because it is absolute, the privilege applies irrespective of any malice or intent to cause injury. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1063 (Rusheen); Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913.)
“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, supra, 50 Cal.3d at p. 212.) The requirement that the statement be made “in” a judicial proceeding does not limit the litigation privilege to statements made at trial or to evidence offered in open court. (Rusheen, supra, 37 Cal.4th at p. 1057; Albertson v. Raboff (1956) 46 Cal.2d 375, 381.) Rather, the privilege “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.” (Silberg, supra, at p. 212.) As a result, “‘communications with “some relation” to judicial proceedings’ are ‘absolutely immune from tort liability’” by the privilege. (Rusheen, supra, at p. 1057.)
The principal purpose of the litigation privilege 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.” (Silberg, supra, 50 Cal.3d at p. 213.) The privilege also “promotes effective judicial proceedings by encouraging ‘“open channels of communication and the presentation of evidence”’ without the external threat of liability.” (Flatley v. Mauro, supra, 39 Cal.4th at p. 322.) As our Supreme Court has recognized, “[f]or our justice system to function, it is necessary that litigants assume responsibility for the complete litigation of their cause during the proceedings.” (Silberg, supra, at p. 214.) The privilege therefore “places upon litigants the burden of exposing . . . the bias of witnesses and the falsity of evidence” in the proceeding in which it occurred, “thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result.” (Ibid.)
III. Application Of The Litigation Privilege To Winston’s Tort Action
Based on our review of the allegations in Winston’s complaint, we conclude that her causes of action for fraud and emotional distress are barred by the litigation privilege. As set forth in her complaint, Winston’s fraud claim is based on the allegation that Unifund falsely represented in the collection action that it had legally acquired her credit card debt and falsely represented that it had properly served her with the summons and complaint. Winston’s emotional distress claim is likewise based on Unifund’s allegedly false representations regarding service of the complaint which ultimately resulted in the entry of a default judgment against her and caused her to suffer emotional distress. Because these allegedly fraudulent representations constitute communicative acts by Unifund and its attorneys in the prior collection proceeding, they fall squarely within the scope of the litigation privilege. Accordingly, such acts cannot form the basis for Winston’s tort claims.
Winston’s complaint also includes a few vague allegations of identify theft by a third party. Though not entirely clear, Winston appears to allege that her credit cards with Providian were fraudulently opened by a former acquaintance. In support of this claim, Winston relies on a report that she allegedly received from a credit reporting agency, Equifax, which stated in reference to certain accounts that “[t]his fraud account/inquiry has been deleted.” However, on its face, this report does not provide any indication that Providian, Unifund or Unifund’s attorneys fraudulently opened credit accounts in Winston’s name or had any knowledge of purported fraud on such accounts. These allegations therefore do not support a claim for fraud or emotional distress against Unifund or its attorneys.
With respect to the allegation that Unifund fraudulently represented that it had purchased Winston’s credit card debt from Providian, this communication clearly is protected by the privilege. It is based on a statement made by Unifund in its collection complaint that it had “acquired all rights, title and interest in the obligation upon which this suit is brought and is the legal holder thereof.” It thus constitutes a communication by a litigant in the course of a judicial proceeding. It also was logically related to the collection proceeding and was made to achieve the objects of that litigation, i.e., to collect on the credit card debt purportedly owed by Winston. (See Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1148 [“A party’s pleadings obviously satisfy [the ‘objects of the litigation’] test”].) Both the contents of pleadings and the act of filing pleadings have long been deemed to be communicative conduct that falls within the scope of the litigation privilege. (See, e.g., Rubin v. Green (1993) 4 Cal.4th 1187, 1195 [“[W]e can imagine few communicative acts more clearly within the scope of the privilege than . . . filing the complaint and subsequent pleadings in the litigation.”]; Navellier v. Sletten (2003) 106 Cal.App.4th 763, 770 [“Pleadings and process in a case are generally viewed as privileged communications.”].) Any allegation that Unifund’s statement was fraudulent or made with a malicious intent is immaterial to the application of the privilege. (Rusheen, supra, 37 Cal.4th at p. 1063 [“[T]he litigation privilege is absolute and applies regardless of malice.”]; O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 135 [“[E]ven an act committed fraudulently or with malice is privileged under [Civil Code] section 47, subdivision (b).”].)
With respect to the allegation that Unifund fraudulently represented that it had served Winston with the collection complaint in order to obtain a default judgment against her, such actions are likewise protected by the litigation privilege. Indeed, our Supreme Court directly addressed the application of the privilege to this type of communicative conduct in Rusheen, supra, 37 Cal.4th 1048. The plaintiff in Rusheen sued the defendant for abuse of process, alleging that the defendant improperly obtained a default judgment against the plaintiff in a prior litigation based on perjured declarations of service. (Id. at pp. 1053-1054.) Like Winston, the plaintiff in Rusheen asserted that he never was served with a summons and complaint in the prior action. (Id. at p. 1054.) The Supreme Court held that the plaintiff’s claim failed as a matter of law because the litigation privilege extended to the filing of allegedly false declarations of service to obtain a default judgment. (Id. at p. 1058.) The Court further held that because the gravamen of the action was the procurement of a default judgment based on privileged declarations of service, acts necessary to enforce the judgment also fell within the protection of the privilege. (Id. at p. 1065.) Here, the gravamen of Winston’s action is similarly the procurement of a default judgment based on Unifund’s allegedly false representations to the court regarding service. Therefore, Unifund’s purported actions in failing to serve Winston with the complaint and then representing to the court that she had been properly served constitute communicative conduct within the scope of the privilege. Because the litigation privilege protects the specific acts upon which Winston is basing her claims, her complaint fails to state a cause of action as a matter of law.
We also conclude that Winston has failed to demonstrate how any amendment could cure the defects in her complaint. Winston argues that she should have been allowed to amend her complaint to add allegations that Unifund falsely represented in the collection action that it was a New York partnership. Specifically, she contends that, after filing her original complaint, she learned of new evidence establishing that the entity identified in the collection action as “Unifund CCR Partners, a New York Partnership” does not exist, and thus, that Unifund lacked the legal authority to sue her under that name. However, Unifund’s allegedly fraudulent representation regarding its status as a New York partnership also is protected by the litigation privilege. Like its statement that it had legally acquired Winston’s debt from Providian, Unifund’s representation that it was a New York partnership was made in its collection complaint. This statement accordingly constitutes a communication by a litigant in a judicial proceeding to achieve the objects of the litigation, and whether fraudulent or not, it is privileged as a matter of law. (See Kashian v. Harriman, supra, 98 Cal.App.4th at p. 917 [Filing of “meritless lawsuits on behalf of ‘sham plaintiffs’ to deceive the defendants . . . is essentially communicative conduct” protected by the litigation privilege.].) Other than Unifund’s purported misrepresentation of its status as a New York partnership, Winston does not offer any new allegations or theories of recovery to support her argument that amendment would be proper. Given the nature of the injuries which Winston is alleging, there is no reasonable probability that she could amend her complaint to include allegations that would not be barred by the privilege. (See Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 66 [affirming dismissal of abuse of process claim with prejudice on basis of litigation privilege where plaintiff “cannot amend his complaint to allege any injury outside the judicial process”].)
Although Winston makes several arguments as to why the litigation privilege should not apply to her claims, none of her arguments can withstand scrutiny. First, Winston contends that the privilege should not apply because she never was able to challenge Unifund’s collection claim in the prior proceeding as there was no trial on the merits and no evidence attached to Unifund’s complaint to verify its allegations. Winston also asserts that because Unifund did not offer any evidence to establish that it had a legal right to recover her debt, she was denied equal protection of the laws under the Fourteenth Amendment of the United States Constitution. However, in filing the collection action against Winston, Unifund was not required to attach any evidence to its complaint. It simply was required to set forth a “statement of the facts constituting the cause of action” and a “demand for judgment for the relief” to which it claimed it was entitled. (Code Civ. Proc., § 425.10, subd. (a).) Moreover, because Winston had notice of the complaint early in the proceedings, she could have contested Unifund’s claims by filing a responsive pleading or challenged jurisdiction by filing a motion to quash service of summons. Alternatively, once a default judgment was obtained, Winston could have brought a timely motion to vacate the judgment on grounds of improper service given that she was aware of the default the day after it was entered. As our Supreme Court explained in Silberg, one of the principal purposes of the litigation privilege is “enhancing the finality of judgments and avoiding an unending roundelay of litigation.” (Silberg, supra, 50 Cal.3d at p. 214.) The privilege thus places the burden on “litigants [to] assume responsibility for the complete litigation of their cause during the proceedings.” (Ibid.)
Winston attempts to distinguish the Supreme Court’s decision in Silberg by asserting that “in the Silberg case, all participants were in the courtroom and played an integral role in the proceedings, unlike in the instant case when there were no court appearances and no correspondence between the Court, plaintiff and defendant other than a default money judgment.” But it is well-settled that the litigation privilege “is not limited to statements made during a trial or other proceedings” before the court. (Rusheen, supra, 37 Cal.4th at p. 1057.) If the statement is logically related to the litigation, it is protected by the privilege “even though the publication is made outside the courtroom and no function of the court or its officers is involved.” (Silberg, supra, 50 Cal.3d at p. 212.)
Winston further argues that the litigation privilege should not apply because her action against Unifund involves extrinsic fraud. She seemingly relies on a statement in Silberg that “[t]o allow a litigant to attack the integrity of evidence after the proceedings have concluded, except in the most narrowly circumscribed situations, such as extrinsic fraud, would impermissibly burden, if not inundate, our justice system. [Citations.]” (Silberg, supra, 50 Cal.3d at p. 214 [emphasis added].) In this case, however, Winston’s allegations do not support a claim for extrinsic fraud. Extrinsic fraud occurs “‘where the defrauded party was deprived of the opportunity to present his or her claim or defense to the court, that is, where he or she was kept in ignorance or in some other manner, other than from his or her own conduct, fraudulently prevented from fully participating in the proceeding.’” (Home Ins. Co. v. Zurich Ins. Co., supra, 96 Cal.App.4th at pp. 26-27.) On the other hand, “[r]elief on the ground of extrinsic fraud or mistake is not available to a party if that party has been given notice of an action yet fails to appear, without having been prevented from participating in the action. [Citation.]” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 503.) Here, it is undisputed that Winston had knowledge of Unifund’s collection complaint early in the proceedings, as she submitted two affidavits in response to the complaint before a default judgment was entered against her. Therefore, even assuming, as Winston alleges, that she never was properly served in the collection action, she cannot demonstrate extrinsic fraud.
Furthermore, even where extrinsic fraud can be shown, the defrauded party’s remedy generally is limited to a motion or action to set aside the judgment and does not extend to a separate lawsuit for damages. (See, e.g., Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 844; Kuehn v. Kuehn (2000) 85 Cal.App.4th 824, 834; Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1146-1147.) Although the litigation privilege does not apply to an equitable action to set aside a judgment on grounds of extrinsic fraud, it provides an absolute bar to derivative tort claims based on fraudulent communications made in a prior judicial proceeding. (Rubenstein v. Rubenstein, supra, at pp. 1146-1147.) For these reasons, “[w]here a civil judgment is procured by extrinsic fraud, the normal remedy is to seek equitable relief from the judgment, not to sue in tort. [Citations.]” (Id. at p. 1147.)
Winston also contends that the protection of the litigation privilege should not extend to Unifund’s attorneys because they purportedly engaged in criminal conduct in violation of Business and Professions Code section 6128. Yet “communications made in connection with litigation do not necessarily fall outside the privilege simply because they are, or are alleged to be, fraudulent, perjurious, unethical, or even illegal.” (Kashian v. Harriman, supra, 98 Cal.App.4th at p. 920.) The litigation privilege is absolute and applies regardless of a litigant’s “motives, morals, ethics or intent.” (Silberg, supra, 50 Cal.3d at p. 220.) Our Supreme Court accordingly has recognized that where a privileged communication by an attorney rises to the level of criminal conduct, “other remedies aside from a derivative suit for compensation will exist,” including “criminal prosecution under Business and Professions Code, section 6128[,] and State Bar disciplinary proceedings for violation of Business and Professions Code, section 6068, subdivision (d).” (Id. at pp. 218-219, fn. omitted; see also Kashian v. Harriman, supra, at p. 921 [rejecting argument that “communicative conduct (alleged to be) in violation of Business and Professions Code section 6128 is outside the privilege because it does not further the object of litigation”].) In this case, we make no determination as to whether the alleged conduct of Unifund’s attorneys in filing the collection action and obtaining a default judgment against Winston constitutes criminal deceit. We simply conclude that, based on the litigation privilege, Winston’s remedy for the conduct alleged in her complaint is not a derivative action in tort.
Business and Professions Code section 6128 provides, in pertinent part, that “[e]very attorney is guilty of a misdemeanor who . . . [¶] (a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.” (Bus. & Prof. Code, § 6128, subd. (a).)
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: PERLUSS, P. J. WOODS, J.