Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. C06-02363
Margulies, J.
Plaintiff Patricia Bynum filed a lawsuit against defendant Sylvia Woods, a lawyer who represented plaintiff’s daughter’s husband in a divorce and child custody proceeding. The complaint alleged that defendant assaulted plaintiff’s daughter, Monica Meadors-Washington (Meadors), slandered and libeled Meadors, and otherwise acted improperly toward Meadors during the proceeding. The trial court dismissed the lawsuit under Code of Civil Procedure section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute, concluding that the challenged activities were protected because they occurred in connection with judicial proceedings. We affirm.
I. BACKGROUND
Plaintiff filed a complaint against defendant alleging that (1) defendant assaulted Meadors during a child custody hearing, (2) defendant twice committed slander against Meadors during that or another judicial hearing, (3) defendant wrongfully denied Meadors visitation with her children, and (4) defendant “authored” libelous statements made about Meadors in a judicial pleading. The complaint alleged that plaintiff was injured “as a result of injuries to daughter caused by defendant; causing Plaintiff to suffer insomnia with difficulty falling asleep, difficulty remaining asleep, worry, fear, economic losses, and emotional deprivation from Plaintiff’s grandchildren.” Plaintiff sought $4 million in damages.
Defendant filed a motion to strike the complaint pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute. According to statements made in the memorandum of points and authorities submitted in connection with that motion, defendant represented Meadors’s husband in a divorce and child custody proceeding. During and after that proceeding, Meadors and plaintiff filed several lawsuits against various persons associated with it.
The anti-SLAPP statute permits a defendant to make a special motion to strike any cause of action “arising from any act . . . in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue,” unless the court determines that the plaintiff is likely to prevail on the cause of action. (Code Civ. Proc., § 425.16, subd. (b)(1).) Defendant argued that the lawsuit was subject to a special motion to strike under section 425.16, subdivision (e)(1) and (2), which define an “act in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” to include, among other things, a statement made in a judicial proceeding or in connection with an issue under consideration or review by a judicial body. Defendant also argued that plaintiff was not likely to prevail on her claims because all of the statements on which plaintiff’s claims were premised were protected by the litigation privilege, Civil Code section 47, subdivision (b).
In addition, defendant demurred to the complaint. The demurrer argued that plaintiff lacked standing to assert her claims, since all of them were based on torts committed against Meador, rather than plaintiff, and that all of the claims were subject to the litigation privilege.
Plaintiff did not file an opposition to the motion to strike and did not appear at the hearing. The motion was granted as unopposed, and judgment was entered dismissing the complaint. The court also awarded to defendant attorney fees and costs in the amount of $4,360. In light of the dismissal under Code of Civil Procedure section 425.16, the court did not rule on the demurrer.
Following the dismissal, but before entry of the judgment, plaintiff filed a voluntary request for dismissal of her lawsuit. At the time judgment was entered, plaintiff filed a motion to set aside the judgment and amend her complaint. The motion did not directly address the grounds for dismissal but, in a declaration, it expanded on the factual background for her claims. The declaration acknowledged that defendant was the attorney for plaintiff’s son-in-law and effectively confirmed that the claims asserted by plaintiff involve torts against her daughter. Before any ruling on the motion to set aside, plaintiff filed a notice of appeal of the judgment.
II. DISCUSSION
Plaintiff contends that (1) she was never served with defendant’s moving papers, (2) defendant did not timely respond to the complaint, (3) plaintiff was improperly denied an opportunity to amend the complaint, and (4) the statements on which the complaint was based were made outside the course of judicial proceedings.
First, plaintiff contends she was never served with the motion papers. The record contains a properly executed proof of service that contradicts this contention. When a proof of service substantially complies with the applicable statutory requirements, it creates a rebuttable presumption that service was proper. (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) Plaintiff submitted no evidence to the trial court to rebut this presumption. Further, plaintiff waived any claim of inadequate service or notice by failing to raise the issue in the trial court, at a time when it could have been addressed and cured. (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1149.)
Plaintiff also contends that defendant did not respond to the complaint by filing her demurrer and special motion to strike within the time period allotted by the Code of Civil Procedure. Again, plaintiff’s remedy was to raise these procedural issues in the trial court. (Fourth La Costa Condominium Owners Assn. v. Seith (2008) 159 Cal.App.4th 563, 582, fn. 5.) They do not constitute a basis for reversing the trial court’s decision on the merits.
Plaintiff’s third contention is that she was improperly denied the opportunity to amend her complaint. Denial of leave to amend is reviewed for abuse of discretion. To show an abuse of discretion, the plaintiff has the burden of demonstrating that “ ‘ “there is a reasonable possibility the plaintiff could cure the defect with an amendment.” ’ ” (Rice v. Center Point, Inc. (2007) 154 Cal.App.4th 949, 959.) Because plaintiff did not respond to the demurrer and motion to strike in any manner, she neither requested leave to amend in a timely manner nor demonstrated to the trial court any set of facts that would avoid these motions. Further, plaintiff voluntarily dismissed her own lawsuit before moving for leave to file an amended complaint. Accordingly, there was no abuse of discretion in trial court’s failure to grant plaintiff leave to amend.
We also find no facts alleged in the documents submitted by plaintiff in the trial court or in this court that would state a valid claim. Plaintiff’s description of her slander claims makes clear that they all involve conduct by defendant in connection with a judicial proceeding. Such claims are barred by the litigation privilege of Civil Code section 47, subdivision (b). Further, it is clear that all of defendant’s alleged wrongful conduct was directed against plaintiff’s daughter, not against plaintiff. Plaintiff lacks standing to raise these claims. (Code Civ. Proc., § 367; see also Redevelopment Agency of San Diego v. San Diego Gas & Electric Co. (2003) 111 Cal.App.4th 912, 920–921.) Although plaintiff could, at least in theory, have asserted a claim for infliction of emotional distress as a result of witnessing the assault on her daughter, there is no allegation in the pleadings that she actually witnessed the assault or that it, as opposed to defendant’s other allegedly wrongful conduct, caused plaintiff the “serious emotional distress” required by Thing v. La Chusa (1989) 48 Cal.3d 644, 668, to state a valid claim. In addition, there is no mention of the assault in the declaration filed with plaintiff’s motion for leave to file an amended complaint.
Finally, plaintiff’s contention that the statements on which her claims were based were made outside a judicial proceeding is contrary to the allegations of her complaint, which clearly states that all of the events occurred either during or in the course of judicial proceedings. The trial court was required to base its decision on the facts alleged in the pleadings on file. There was no error in its conclusion that all the events alleged in the complaint occurred in connection with a judicial proceeding.
III. DISPOSITION
The judgment of the trial court is affirmed.
We concur: Marchiano, P.J., Swager, J.