Opinion
B320939
09-14-2023
HENRY AGUILA, Plaintiff and Appellant, v. CIVIC PROPERTY & CASUALTY COMPANY, Defendant and Respondent.
Henry Aguila, in pro. per., for Plaintiff and Appellant. Woolls Peer Dollinger & Scher, Gregory B. Scher and H. Douglas Galt for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order and judgment of dismissal of the Superior Court of Los Angeles County No. 21NWCV00406, Olivia Rosales, Judge. Affirmed.
Henry Aguila, in pro. per., for Plaintiff and Appellant.
Woolls Peer Dollinger & Scher, Gregory B. Scher and H. Douglas Galt for Defendant and Respondent.
EGERTON, J.
Henry Aguila, a self-represented individual in the trial court and on appeal, appeals from the trial court's order and judgment of dismissal after the court granted defendant Civic Property &Casualty Company's (CPCC) and its counsel's, defendants Roberta Winston and her firm Berger Kahn, separate special motions to strike under Code of Civil Procedure section 425.16 (anti-SLAPP motion). Aguila's sole challenge to the court's order is that it erred in denying his request to amend the operative pleading "to address facts and issues" raised in a declaration submitted in support of the anti-SLAPP motions. We find no error and affirm.
The acronym SLAPP stands for "strategic lawsuit against public participation." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) Undesignated statutory references are to the Code of Civil Procedure unless indicated otherwise. Winston and Berger Kahn are not parties to this appeal. The trial court granted their motion on the same basis as CPCC's motion.
FACTS AND PROCEDURAL BACKGROUND
We summarize the relevant facts in the light most favorable to plaintiff, the party opposing the anti-SLAPP motion. (Murray v. Tran (2020) 55 Cal.App.5th 10, 16, citing Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park).)
Our factual summary is taken from the operative first amended complaint, as well as from evidence presented to the court in support of and in opposition to the anti-SLAPP motions. (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 876, fn. 2 (Medical Marijuana); § 425.16, subd. (b)(2) [court considers "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based"].)
1. The allegations
This action stems from an underlying lawsuit Aguila filed in March 2020 against CPCC in the San Bernardino County Superior Court (case no. CIVDS2007096) (the original action). The original action was an insurance coverage case based on a claim for damages to the Lake Arrowhead vacation home of CPCC's insured Robert Hernandez. Hernandez made the claim in November 2019 for vandalism, theft of personal property, and loss of use.
Aguila is Hernandez's cousin. In March 2020, Hernandez assigned his breach of contract claim against CPCC to Aguila, and Aguila sued CPCC for breach of contract on the insurance claim that same month. The San Bernardino Superior Court granted CPCC's motion for summary judgment at a hearing on July 15, 2021. In its July 27, 2021 written order, the court found Hernandez's claim was not covered by his policy with CPCC because Hernandez did not reside there. The Fourth District Court of Appeal affirmed the judgment in the original action while the current appeal was pending. (Aguila v. Civic Property &Casualty Company (Sept. 13, 2022, E077696) [nonpub. opn.].)
The trial court in this matter granted the parties' requests for judicial notice-including of the complaint and order granting summary judgment in the original action-as to the existence of the documents but not as to hearsay statements within them.
Aguila filed the current action in June 2021, and filed the operative first amended complaint (FAC) on October 4, 2021.He sued Guinevere Malley and her law firm Wolk &Levine, LLP for breach of fiduciary duty and intentional interference with prospective economic advantage. Aguila also named CPCC, its attorney Roberta Winston, and her law firm Berger Kahn, as co-defendants (collectively, the insurance defendants), alleging causes of action for intentional interference with prospective economic advantage, aiding and abetting a breach of fiduciary duty, and intentional infliction of emotional distress (also alleged against Malley).
The original complaint is not part of the appellate record.
The FAC alleged Malley had been the attorney for Aguila and his company Thee Aguila, Inc. (TAI) for more than ten years until July 2019. Among other matters, Malley had represented TAI and Aguila in a dispute with a lender, who held a first trust deed secured by real property TAI owned, on which Aguila was constructing an entertainment venue. The parties reached a settlement in February 2020, and Aguila entered into a 50-year lease for that property with TAI.
The FAC alleged Aguila sued CPCC for breach of contract on the insurance claim Hernandez submitted. "As part of [CPCC's] investigation of the Claim, Plaintiff had informed [CPCC] that Malley had been his prior legal representative on numerous matters, including but not limited to the Entertainment Venue. Plaintiff identified . . . Malley as the last know[n] occupant of the insured property. Plaintiff further informed [CPCC] that the termination of the legal representation by Malley was not amicable and that Malley had a substance abuse problem."
The FAC alleged that in April 2020, CPCC "hired . . . Berger Kahn and Winston to investigate the Claim and to render a coverage opinion. On June 1, 2020, [the insurance defendants], in violation of the guidelines mandated by the California Insurance Commissioner as a result of the . . . Coronavirus . . . outbreak, under the threat of denying the Claim if Hernandez didn't comply with the otherwise illegal activity, conducted an examination under oath ('EUO') of Hernandez. At his EUO, Hernandez testified that all the contents of the insured property belonged to him and not Malley and that Malley had been his legal representative in numerous matters." After the EUO, the insurance defendants, "without first seeking a waiver of attorney/client privilege from Plaintiff, TAI or Hernandez," contacted Malley, who told them "she had represented Plaintiff and TAI in various matters that were still pending, including, but not limited to the Entertainment Venue, and that she was exercising attorney/client privilege to any further inquiries."
"[A]fter Malley refused to disclose any privileged information, [the insurance defendants] made repeated attempts to solicit privileged information" from Malley and "were able to eventually wear down . . . Malley by continuously contacting her through" her firm. They "eventually took advantage of Malley's compromised thinking," as they knew she "had been seeking professional assistance and had been a part of a support group to deal with the consequences of her drug use for several years. Under the pretext that Plaintiff, TAI and Hernandez had waived attorney/client privilege," the insurance defendants "solicit[ed] privileged information" about Aguila and TAI that they "used to deny the Claim. Defendant[s'] tactics were in violation of California Insurance Code 791.03 and irreparably destroyed the privileged relationship between Plaintiff, Tai, Hernandez, and Malley, compromising all matters [on which] Malley had previously represented" them. The insurance defendants "knew that they were soliciting privileged information from a disloyal fiduciary."
The FAC further alleged that in November 2020, Aguila asked Malley for "assistance . . . with respect to her prior involvement and legal representation in the Entertainment Venue." "Malley refused to assist Plaintiff because of the compromise caused by [the insurance defendants] to the privileged relationship between Plaintiff and . . . Malley. [Her] refusal to assist Plaintiff was a violation of the State Bar of California Rule 1.9." The insurance defendants' "conduct was a substantial factor in Malley's refusal to assist Plaintiff."
According to Aguila's declaration, Malley's refusal to assist Aguila in November 2020 enabled the lender on the property for the entertainment venue to foreclose, "sabotaging the entertainment business opportunity [Aguila] had invested in." Earlier, TAI and Aguila also had sued the property's insurer after it withdrew its defense of claims by their former tenants to the property. Aguila declared he asked Malley "to perform a ministerial task concerning her prior legal representation"- she had opposed the former tenants' lien-but she refused to cooperate, "which compromised and sabotaged [his and TAI's] claim for over $30,000,000.00 in damages against [the insurer]." The "ministerial task" Aguila declared Malley refused to perform was to send Aguila a bill for $660,000 she claimed he owed her for defending Aguila and TAI in the case their insurer had dropped.
Malley apparently had filed for bankruptcy, and TAI had given her a third deed of trust on the entertainment venue property as "backup protection against any future foreclosure on the . . . property because of the automatic stay imposed by Malley's pending bankruptcy." The lender had moved for retroactive relief from its violation of Malley's bankruptcy stay, and only Malley had standing to oppose the motion.
2. CPCC's anti-SLAPP motion and Aguila's response
CPCC argued the causes of action asserted against it arose from protected activity-its attorney Winston's questioning of Malley, a "percipient witness," about facts underlying the pending original action, and the litigation privilege under Civil Code section 47, subdivision (b) barred those claims. Among other things, CPCC's supporting evidence included the complaint and order granting summary judgment in the original action, as well as Malley's declaration dated July 15, 2021.
CPCC's counsel prepared Malley's declaration in connection with the original action but apparently never filed it in that proceeding. Aguila declared he never saw the declaration until December 2021 when he received the anti-SLAPP motions. CPCC had noticed Malley's deposition for July 16, 2021, but it canceled the deposition after the court granted it summary judgment at the July 15 hearing.
Malley declared she was in an intimate relationship with Aguila from "March 1991 through, off and on, January 2015 to mid-2016" when they broke up "for good." She declared she resided at the vacation home from January 1993 to October 2019. Malley declared Aguila had told her, in 2010, that the house "and all the personal furnishings within" were hers "free and clear." When they first separated in 2015, they agreed the house and everything in it was Malley's. She averred that when she moved out of the vacation home, she "took with [her], or otherwise disposed of [her] own personal property," including appliances, sculptures, light fixtures, electrical outlet covers, cabinet doors, bedding, towels, china, and other items.
Malley declared she spoke to a CPCC investigator in December 2019 and confirmed she had lived at the vacation home for over 20 years, had moved out because she received a 60-day notice, and had taken some of the furniture because it belonged to her. She declared she informed the investigator of her agreement with Aguila that the items in the home belonged to her.
Malley also declared she spoke to Winston in June 2020 about "the facts of [her] residence and vacating of the" property. Winston asked Malley about her representation of TAI, and Malley declared she replied that she thought answering Winston's question might violate the attorney-client privilege. Winston told Malley that Aguila had given her a copy of Malley's retainer agreement with TAI and had sent Malley a copy of the July 20, 2012 agreement the next day. They spoke again a few weeks later, and Malley confirmed the retainer agreement was between her and TAI, and Hernandez was not a party to the agreement, individually. Malley declared she confirmed she had not represented Hernandez individually. Malley also declared Winston asked her if instead of paying the monthly retainer amount under the agreement, "it was agreed it would be applied as rent for the Home to Robert Hernandez." Malley declared she told Winston she had not agreed to that "but did not know what Henry Aguila had done." Malley averred she also provided Winston with "some documentation regarding some of the personal property" she had taken from the house, "supporting [her] contention that the personal property belonged to [her], and not . . . Hernandez."
In his opposing declaration, Aguila stated Malley was allowed to use the vacation home as a house sitter. He denied having given Malley the contents of the vacation home and noted inconsistencies between Malley's declaration and CPCC's claim file. Aguila declared that, had Malley's deposition gone forward in the original action, his "intent . . . was to assert attorney client privilege."
In his opposition to CPCC's motion, Aguila argued CPCC's conduct was not protected activity because the insurance defendants intentionally had "circumvent[ed] attorney client privilege." Aguila also argued Malley's declaration provided "new facts previously unknown" to him, and asked the court to grant him leave to amend the FAC to establish his claims had minimal merit under the second prong of the anti-SLAPP statute. Aguila argued the litigation privilege did not bar his claims because Malley's declaration showed CPCC had engaged in criminal conduct: suborning perjury by knowingly preparing a false declaration (Pen. Code, § 127) and acting as an accessory after the fact to Malley's larceny (Pen. Code, §§ 32, 484).
3. The court's ruling
On January 20, 2022, the court heard argument on, and granted, CPCC's and Winston and Berger Kahn's anti-SLAPP motions. The reporter's transcript is not part of the appellate record.
In its written ruling, the court found CPCC had established the claims against it arose from protected activity. The court stated CPCC's "alleged conduct of contacting and questioning . . . Malley (Plaintiff's former attorney and girlfriend) in order to investigate and respond to the breach of insurance claim action filed by . . . Hernandez against CPCC is certainly in furtherance of CPCC's right to petition." The court explained, "To be clear, . . . Malley was questioned by CPCC based on her status as a former resident of the subject property-not because she was Plaintiffs attorney in other actions." Citing Malley's declaration, the court found she "did not disclose any information pertaining to her legal representation of Plaintiff in other case(s). No privileged information was disclosed." The court also found the unlawful conduct exception to section 425.16 protection did not apply, as Aguila had argued, because CPCC neither conceded its questioning of Malley was illegal, nor did the evidence conclusively establish its conduct was illegal. (Citing Kemps v. Beshwate (2009) 180 Cal.App.4th 1012, 1017-1018.)
The court then found Aguila did not have a probability of prevailing on the merits of any of his claims under the second prong of the anti-SLAPP statute because they arose from CPCC's "alleged conduct in the underlying insurance claim proceeding and litigation," which was protected by the litigation privilege under Civil Code section 47, subdivision (b).
The court then granted CPCC's motion to strike and awarded it attorney fees and costs. (The court also granted Wilson and Berger Kahn's joint motion to strike, as they were acting on behalf of CPCC.) On February 28, 2022, the court entered a judgment of dismissal in favor of CPCC and against Aguila on all causes of action asserted against CPCC.
DISCUSSION
1. Applicable law and standard of review
The anti-SLAPP statute, section 425.16, "authorizes a special motion to strike a claim 'arising from any act of [the moving party] in furtherance of [the party's] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.' (§ 425.16, subd. (b)(1).)" (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883-884.) As relevant here, an" 'act in furtherance of a person's right of petition or free speech . . . in connection with a public issue' includes: (1) any written or oral statement or writing made before a . . . judicial proceeding . . ., [or] (2) any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body ...." (§ 425.16, subd. (e).) The statute" 'does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.'" (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788 (Monster Energy).)
In ruling on an anti-SLAPP motion, the court engages in a two-step process." 'First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. [Our Supreme Court has] described this second step as a "summary-judgmentlike procedure." [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law. [Citation.] "[C]laims with the requisite minimal merit may proceed."' [Citation.] . . . As to the second step, a plaintiff seeking to demonstrate the merit of the claim 'may not rely solely on its complaint . . .; instead, its proof must be made upon competent admissible evidence.' [Citations.]" (Monster Energy, supra, 7 Cal.5th at p. 788.)
We review an order granting an anti-SLAPP motion de novo. (Park, supra, 2 Cal.5th at p. 1067.)
2. The court did not err in granting CPCC's motion and implicitly denying Aguila leave to amend the FAC
Aguila contends the trial court erred in denying him leave to amend the FAC to address new evidence (Malley's declaration) CPCC presented with its motion so he could "prove the probability of prevailing on the merits to meet his burden on the second prong" of the anti-SLAPP statute. He thus does not appear to challenge the trial court's finding that CPCC met its burden of showing the FAC's claims against it arose from CPCC's protected activity, nor does he contend the court erred in finding he failed to demonstrate a probability of success on the merits of his claims, as alleged in the FAC.
a. The FAC's claims alleged against the insurance defendants were subject to the anti-SLAPP statute
Preliminarily, we conclude the court correctly found the causes of action alleged against the insurance defendants in the FAC were subject to the anti-SLAPP statute." 'A cause of action "arising from" defendant's litigation activity may appropriately be the subject of a section 425.16 motion to strike.'" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 (Rusheen).) Aguila's claims against CPCC unquestionably arose out of CPCC's litigation activity. As the trial court stated, CPCC contacted and questioned Malley-through Winston and Berger Kahn- in connection with its investigation of, and in response to, Hernandez's insurance claim and Aguila's breach of contract action based on that claim. CPCC's oral and written communications to Malley and about Malley's statements thus were made "before a . . . judicial proceeding" and/or "in connection with an issue under consideration or review by a . . . judicial body." (§ 425.16, subd. (e).) The court found "[t]he questions posed to . . . Malley were in furtherance of CPCC's efforts to defend itself on the breach of insurance contract claim," and "Malley did not disclose any information pertaining to her legal representation of [Aguila] in other case(s)." Aguila does not challenge the court's findings.
The court also found the illegal conduct exception to the anti-SLAPP statute's application to protected activity did not apply because CPCC did not concede its conduct was illegal and the evidence did not establish its conduct was illegal as a matter of law. We have reviewed the record and agree. (See City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 424 (City of Montebello).) Again, Aguila does not challenge that finding.
Finally, as the insurance defendants' alleged communications with Malley all were made in connection with CPCC's investigation of Hernandez's insurance claim and the breach of contract action against it, the court properly found the FAC's causes of action against them were barred by the litigation privilege, Civil Code section 47, subdivision (b). (Rusheen, supra, 37 Cal.4th at p. 1057 [" '[C]ommunications with "some relation" to judicial proceedings' are 'absolutely immune from tort liability' by the litigation privilege."].) Aguila does not appear to contest the application of the litigation privilege to his claims against CPCC as alleged in the FAC.
b. Aguila failed to establish an exception to the general policy against permitting amendment in response to an anti-SLAPP motion
In his opening brief, Aguila essentially argues he should have been permitted to amend his FAC because the declaration CPCC and Malley drafted-which CPCC did not disclose to him until CPCC attached it to its anti-SLAPP motion-provides evidence of their "collaboration and conspiracy . . . against [his] interest." He argues CPCC's and Malley's collaboration "explains what otherwise was inexplicable conduct by Malley in refusing to perform a simple ministerial act, provide a detailed billing, which she was contractually and ethically required to perform based on her retainer agreement."
" '[S]ection 425.16 provides no mechanism for granting anti-SLAPP motions with leave to amend.' [Citation.] Courts have routinely concluded that plaintiffs may not be permitted to evade the intent of the anti-SLAPP statute by amendment once faced with an anti-SLAPP motion." (Medical Marijuana, supra, 46 Cal.App.5th at p. 897.) In Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858 (Nguyen-Lam), on which Aguila relies, however, the trial court found the defendant had satisfied the first prong of his anti-SLAPP motion on the plaintiffs complaint for defamation, but granted the plaintiff leave to amend to allege actual malice, finding she had established a probability of prevailing on the claim. The defendant had admitted in his declaration filed with his motion to strike that he did not know the plaintiff. (Id. at pp. 865-866, 868-869.) His declaration thus was sufficient to show he had acted with actual malice in making false statements about the plaintiff. (Id. at pp. 865, 869.) The court noted "a plaintiff may not avoid or frustrate a hearing on the anti-SLAPP motion by filing an amended complaint," but concluded "where, as [there], the evidence prompting amendment is found in the declarations already submitted for the hearing, there is no risk the purpose of the strike procedure will be thwarted with delay, distraction, or increased costs." (Id. at pp. 871-872.) As the plaintiff had demonstrated a probability of prevailing on the merits if she could amend her complaint, the trial court did not err in permitting her to do so "to plead actual malice in conformity with the proof presented at the hearing on the strike motion." (Id. at p. 873.)
Aguila's "new evidence" does not meet the "unique exception" articulated in Nguyen-Lam, as he seems to contend. (Medical Marijuana, supra, 46 Cal.App.5th at p. 899 [noting "[t]he Nguyen-Lam plaintiff sought to amend her complaint to plead a necessary element (malice) of a claim for which the defendant's protected activity had already been sufficiently pleaded (defamation)"].)
As CPCC argues, Aguila sought leave to amend the FAC to allege new conduct by CPCC, not to satisfy a missing element of an otherwise sufficiently pleaded claim. Aguila appears to propose, as he did below, to amend the FAC to allege "CPCC and Malley drafted a declaration, the day previously scheduled for Malley's deposition, wherein Malley perjured herself and otherwise admitted to larceny." (In his opposition to the motion to strike, Aguila asserted, "CPCC elected to cancel Malley's deposition and instead sit down with her and fabricate a false declaration.") Aguila argues the trial court should have allowed him to amend the FAC based on this new evidence "to allege violations of . . . Penal Code § 484, Larceny, . . . Penal Code § 32, accessory after the fact, and . . . Penal Code § 127, suborning perjury." He contends the litigation privilege neither protects any of these Penal Code violations nor the violation of attorneyclient privilege, establishing the merit of his claims if permitted to amend the FAC.
Moreover, as CPCC notes, Aguila could have noticed Malley's deposition himself before the hearing on CPCC's motion for summary judgment.
Although Aguila argues these allegations will demonstrate his claims against the insurance defendants have the requisite minimal merit, the illegal conduct exception he seems to invoke relates to the first prong of the anti-SLAPP analysis-whether defendants were engaging in protected activity. In Flatley v. Mauro (2006) 39 Cal.4th 299, 320 (Flatley), our high court explained, "whether the defendant's underlying conduct was illegal as a matter of law is preliminary, and unrelated to the second prong question of whether the plaintiff has demonstrated a probability of prevailing, and the showing required to establish conduct illegal as a matter of law-either through defendant's concession or by uncontroverted and conclusive evidence-is not the same showing as the plaintiff's second prong showing of probability of prevailing." In Nguyen-Lam, the court noted the plaintiff's proposed amendment would not "attempt to void [the] defendant's showing on the first prong of the anti-SLAPP inquiry." (Nguyen-Lam, supra, 171 Cal.App.4th at pp. 870-871; Medical Marijuana, supra, 46 Cal.App.5th at pp. 899-900.) As Aguila's proposed amendment-as he has explained it-would, it in turn would "trigger 'a fresh motion to strike,' and . . . 'totally frustrate the Legislature's objective of providing a quick and inexpensive method of unmasking and dismissing such suits.'" (Medical Marijuana, at p. 900, citing Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074.)
In any event, allowing Aguila's proposed amendment would be futile. As with CPCC's initial communications with Malley, its communications with her in the drafting of her declaration were made in connection with a judicial proceeding and thus protected activity under section 425.16, subdivision (e). As the trial court noted, "[c]onduct must be illegal as a matter of law to defeat a defendant's showing of protected activity. . . . The defendant must concede the point, or the evidence conclusively demonstrate it, for a claim of illegality to defeat an anti-SLAPP motion at the first step." (City of Montebello, supra, 1 Cal.5th at p. 424.) Aguila contends Malley's declaration demonstrates she committed larceny in violation of Penal Code section 484, CPCC was an accessory after the fact to that larceny in violation of Penal Code section 32, and CPCC suborned perjury in violation of Penal Code section 127 by knowingly preparing a false declaration. But, as with the conduct alleged in the FAC, CPCC has not admitted, nor does the evidence conclusively establish, it committed any of the Penal Code violations Aguila proposes, nor intentionally elicited attorney-client privileged information from Malley. Thus, the alleged new conduct, conspiring with Malley to draft the allegedly perjurious declaration, unquestionably remains protected litigation activity under prong one of the anti-SLAPP statute.
In any event, Aguila appears only to argue that the new evidence is relevant to the second prong of the anti-SLAPP statute analysis. As with the FAC's allegations against CPCC, the litigation privilege would bar Aguila's recovery from the newly alleged conduct, precluding him from demonstrating a probability of prevailing. (Flatley, supra, 39 Cal.4th at p. 323 [the litigation privilege "may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing" under prong two]; Bergstein v. Stroock &Stroock &Lavan LLP (2015) 236 Cal.App.4th 793, 814 [" 'A plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant's liability on the claim.' "].)
As relevant here, Civil Code section 47, subdivision (b) defines a "privileged publication or broadcast" as one made in "any . . . judicial proceeding." "[T]he 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." (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) "The privilege 'is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.'" (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241 (Action Apartment).) "The privilege is absolute, providing a defense to all torts except malicious prosecution." (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th 413, 435 (citing Silberg, at pp. 212, 215-216).) This includes claims for fraud, intentional infliction of emotional distress, intentional interference with prospective economic advantage, and others. (Silberg, at p. 215.)" '[T]he absolute privilege is "broadly applied and doubts are resolved in its favor."' [Citation.] For purposes of applying the privilege, it is irrelevant whether the communications at issue were 'made with malice or the intent to harm. [Citation.] Put another way, application of the privilege does not depend on the publisher's "motives, morals, ethics or intent."' [Citation.]" (Bonni v. St. Joseph Health System (2022) 83 Cal.App.5th 288, 300-301.)
Malley was a witness to the underlying claim and her statements to CPCC (a party to the litigation) or its authorized investigators or counsel were communications made during pending litigation to further and/or preserve CPCC's defense. Thus, CPCC's alleged new conduct-its drafting the declaration with Malley during the pendency of the original action- falls squarely within the litigation privilege. CPCC's alleged discussions with Malley to induce her to sign the declaration, and drafting of the declaration itself, would, as CPCC argues, "be '. . . statements] made in furtherance of the objects of the litigation that was already pending between Aguila and CPCC." (See Action Apartment, supra, 41 Cal.4th at p. 1251 ["To be protected by the litigation privilege, a communication must be 'in furtherance of the objects of the litigation.' "]; Rusheen, supra, 37 Cal.4th at p. 1058 [false declaration is" 'sort of communication the privilege is designed to protect' "].) Moreover, any allegedly privileged information CPCC obtained from Malley would have been used to defend itself against Aguila's pending claim in the original action.
Thus, as Aguila's causes of action against CPCC (and the other insurance defendants) would have been barred by the litigation privilege, Aguila has failed to demonstrate the court erred in denying him leave to amend his FAC "to prove the second prong of the anti-SLAPP minimal merit requirement."
DISPOSITION
The court's January 20, 2022 order and February 28, 2022 judgment of dismissal are affirmed. Respondent CPCC is to recover its costs on appeal.
We concur: EDMON, P. J., HEIDEL, J. [*]
[*] Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.