Opinion
B323022
10-25-2023
In re Marriage of TIFFANY K. RIGGLE and ROBERT A. RIGGLE, JR. v. ROBERT A. RIGGLE, JR., Respondent. TIFFANY K. RIGGLE, Appellant,
MBK Chapman, Jason K. Boss, Michael B. Kushner and William D. Chapman for Appellant. Hersh Mannis, Adam P. Lipsic, Suzanne J. Goulet and Andrew M. Stein for Respondent.
NOT TO BE PUBLISHED
Charmaine H. Buehner, Judge Superior Court County of Ventura (Super. Ct. No. D399312) (Ventura County)
MBK Chapman, Jason K. Boss, Michael B. Kushner and William D. Chapman for Appellant.
Hersh Mannis, Adam P. Lipsic, Suzanne J. Goulet and Andrew M. Stein for Respondent.
BALTODANO, J.
Tiffany K. Riggle appeals from an order denying her motion to strike a remedy sought in Robert A. Riggle, Jr.'s request for a domestic violence restraining order (DVRO). Tiffany contends the trial court should have granted her motion to strike the remedy as a strategic lawsuit against public participation (SLAPP) because: (1) it arises from constitutionally protected speech, and (2) Rob failed to show a probability of prevailing on the merits. Rob contends we should: (3) sanction Tiffany because she included improper, confidential documents in the record on appeal. We affirm the denial of Tiffany's anti-SLAPP motion, but deny Rob's request to sanction her.
Conforming to the designations in their respective briefs, we hereafter refer to the Riggles as "Tiffany" and "Rob" to avoid confusion. No disrespect is intended.
TIFFANY'S ANTI-SLAPP MOTION
Factual and procedural history
Tiffany and Rob married in 1999. They had two children together. When Tiffany and Rob split up in April 2020, they agreed that one of them would stay at the former family residence ("Country Ranch") with the children, and the other would stay at a second residence ("Blossom Court"). Tiffany and Rob would alternate which of them stayed at which residence.
Tiffany petitioned to dissolve the marriage in October 2020. After a dispute over missing cash, Tiffany said that she wanted to end the living arrangement she and Rob had agreed to six months earlier. Rob concurred. From then on, Tiffany would stay at Country Ranch and Rob would stay at Blossom Court.
Within a month of the new living arrangement, Rob began to suspect that Tiffany was spying on him. He also believed she had hacked his computer and sent harassing emails and text messages to his loved ones and business associates. For example, on October 30, Rob and his assistant discussed Tiffany in Rob's office at Blossom Court. Three days later, Tiffany sent the assistant a text message accusing her of lying. Months later, Rob and his assistant got into an argument. Later, in the Blossom Court office, Rob and his girlfriend discussed whether to replace the assistant. Within days, someone anonymously emailed the assistant and told her that she was about to be fired.
After several similarly odd communications, Rob and his girlfriend began to have staged discussions in Blossom Court. Soon thereafter, Rob's girlfriend received an anonymous text message describing Rob's previous sexual partners and referencing some of the false information she and Rob had discussed.
In April 2021, Rob had Blossom Court electronically swept. The sweep revealed a sound- and motion-triggered camera hidden in the smoke detector in Rob's office. It had recorded more than 10,000 videos between August 2020 and February 2021.
Among those videos was one of Tiffany on a ladder, either installing or adjusting the camera. Another showed Tiffany counting cash. A third showed Tiffany and another woman rummaging through Rob's bag with an ultraviolet light. A fourth showed Tiffany point at the hidden camera and say, "I have been on top of him, the camera is right there." She then said she would show her companion how she accessed and stored videos from the camera on her phone.
Concerned that Tiffany might disseminate some or all the videos she recorded, Rob applied for a DVRO. In his application, Rob alleged Tiffany had installed the hidden camera, surreptitiously recorded him, hacked his computer, and sent harassing emails and text messages. Section 23 of the application directed Rob to specify the nature of the orders he was requesting. He wrote, "That [Tiffany] be enjoined and restrained from posting photographs, videos, or information about [him] to any [I]nternet site and that she be required to remove [the] same from any [I]nternet site over which she has access and/or control."
Tiffany filed her response to Rob's DVRO request 10 months later. She also filed an anti-SLAPP motion to strike section 23 from the request.
Rob opposed Tiffany's anti-SLAPP motion, arguing: (1) the motion was untimely, (2) the anti-SLAPP statute does not apply to remedies, and (3) even if it did, he showed the requisite minimal merit to proceed with his request.
The trial court denied Tiffany's motion, concluding that she had established neither prong of the anti-SLAPP statute. The court also noted that though Tiffany's motion was untimely, it had nevertheless exercised discretion to decide it.
Discussion
Tiffany contends we should vacate the trial court's denial of her anti-SLAPP motion because: (1) she showed that section 23 of Rob's DVRO request arises from constitutionally protected speech, and (2) Rob failed to show a probability of prevailing on the merits. We independently review Tiffany's contention (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326), and reject it.
"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 [they] will prevail on the claim." (Code Civ. Proc., § 425.16, subd. (b)(1), italics added.) But "[a]n injunction is a remedy, not a cause of action." (Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 162 (Marlin); see also Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 433, fn. 8.) Specific performance is also a remedy. (Patel v. Liebermensch (2008) 45 Cal.4th 344, 349.) The anti-SLAPP statute can be used to strike causes of action, not remedies. (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1360, fn. 2; accord Golden Gate Land Holdings LLC v. Direct Action Everywhere (2022) 81 Cal.App.5th 82, 91; Guessous v. Chrome Hearts, LLC (2009) 179 Cal.App.4th 1177, 1187; Marlin, at p. 162.)
Section 23 of Rob's DVRO request seeks to enjoin Tiffany from posting videos, photos, and information about him on the Internet and to direct her to remove the items she has already posted. These are requests for remedies, not causes of action, and are not subject to an anti-SLAPP motion.
Tiffany counters that a DVRO request is a "cause of action" subject to the anti-SLAPP statute. We agree. (Nakamura v. Parker (2007) 156 Cal.App.4th 327, 335 [request for DVRO a "cause of action" akin to civil harassment petition]; Thomas v. Quintero (2005) 126 Cal.App.4th 635, 646-652 [civil harassment petitions subject to anti-SLAPP motion].) But Tiffany did not move to strike Rob's DVRO request; she moved only to strike remedies requested therein. A remedy that purportedly arises from an act in furtherance of the right of petition or free speech is not subject to the anti-SLAPP statute. (Marlin, supra, 154 Cal.App.4th at p. 162.) Tiffany's motion was correctly denied. (Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1336 [we review a trial court's ruling on an anti-SLAPP motion, not its rationale].)
ROB'S REQUEST FOR SANCTIONS
Factual and procedural history
Counsel for Tiffany filed an opening brief and four-volume appellant's appendix on February 15, 2023. Among the documents included in the appendix and cited in the brief was the confidential brief Rob's counsel prepared for a December 2021 settlement conference. Rob's counsel noticed the inclusion of the settlement brief and, on March 13, filed a motion to strike both it and any reference made to it in Tiffany's opening brief on appeal. He also requested that we sanction Tiffany for the costs Rob incurred in bringing the motion.
That same day, counsel for Tiffany emailed Rob's counsel and offered to remove the settlement brief from the appellant's appendix and to file a corrected opening brief. He said that the inclusion of the brief had been inadvertent; he was not involved in the case when the settlement conference occurred, and the brief was not segregated from public-facing materials when he obtained the case file. Counsel for Tiffany was also surprised that Rob's counsel had filed the motion to strike without first alerting him to his mistake.
On March 22, the parties filed a stipulation to strike the settlement brief from the appellant's appendix. They also stipulated that Tiffany's opening brief would be corrected to remove all reference to the stricken documents. We approved the stipulation two days later, and deferred ruling on Rob's sanctions request pending the completion of briefing.
Discussion
We reject Rob's sanctions request.
An appellant's appendix must not contain documents that are "unnecessary for proper consideration of the issues." (Cal. Rules of Court, rule 8.124(b)(3)(A).) We may sanction a party if their appendix contains such documents. (Id., rule 8.124(g).) We will do so only "rarely," however, and "with great caution" (Alkus v. Johnson-Pacific Co. (1947) 80 Cal.App.2d 1, 12), such as in cases where the inclusion of the unnecessary documents "caused prejudice, confusion, or additional work for the court clerk's office" (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 989 (Doppes)). Mere errors generally do not warrant sanctions. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 102.)
As Tiffany concedes, here it was improper to include a copy of Rob's settlement brief in the appellant's appendix. (See Evid. Code, § 1119, subds. (b) &(c) [settlement briefs inadmissible and confidential].) But that inclusion is fairly characterized as a mere error. Tiffany's appellate counsel was not involved with the case when the settlement conference occurred. And when he received the case file the settlement brief was included with the public-facing documents. As soon as he became aware of its erroneous inclusion in the appellant's appendix, he immediately contacted counsel for Rob and offered to file a new appendix and opening brief. He filed those corrected materials within a matter of days, minimizing any prejudice, confusion, or additional work. Courts have declined to impose sanctions where the sanctionable conduct was more egregious. (See, e.g., Doppes, supra, 174 Cal.App.4th at pp. 987-990.) We similarly decline to do so here.
DISPOSITION
The trial court's order denying Tiffany's anti-SLAPP motion, filed July 11, 2022, is affirmed. Rob's request for sanctions is denied. He shall recover his costs on appeal.
We concur: GILBERT, P. J. CODY, J.