Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG 04163354
Siggins, J.
Plaintiff Sien Lee appeals from a June 20, 2005, judgment of dismissal in favor of defendants Susan A. Bender, Norman McKenzie, Christine Brigagliano and the law firm of Van Der Hout, Brigagliano & Nightingale, LLP. Lee challenges the court’s striking of her complaint as a “strategic lawsuit against public participation” pursuant to Code of Civil Procedure section 425.16 (commonly known as the anti-SLAPP statute). We conclude defendants met their prima facie burden of showing that Lee’s causes of action arise out of defendants’ protected activity in a prior litigation between Lee and McKenzie, and that Lee failed to meet her burden of demonstrating a probability of prevailing on her causes of action. Accordingly, we affirm the judgment of dismissal.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
In addition to the judgment, Lee also appeals from the following: (1) November 16, 2005, postjudgment order which awards costs and attorney’s fees to defendants, and (2) November 28, 2005, notice of entry of the November 16, 2005, order. The purported appeal from the notice of entry is dismissed because no appeal lies from a notice of entry. (§ 904.1.) In her briefs, Lee does not raise any substantive issue regarding the costs and attorney fees order, but argues only that if we reverse the judgment, we should also reverse that order. Because we conclude that there is no basis to reverse the judgment, the order regarding costs and attorney fees must also be affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Lee’s current lawsuit arises from a protracted litigation between Lee and defendant Norman McKenzie regarding paternity, child support, visitation, and custody of their daughter. Throughout most of those family law proceedings, McKenzie was represented by defendant Susan A. Bender, who hired defendant Christine Brigagliano, a partner in defendant Van Der Hout, Brigagliano & Nightingale, LLP (VBN), as an immigration law expert, to address certain questions that arose as to Lee’s immigration status in the United States. Lee mostly represented herself.
For a short period of time she was represented by Lina Foltz.
The family law proceedings consisted of a series of petitions and orders to show cause that were filed over a four-year period. McKenzie initiated the litigation by petitioning for a declaration of paternity and court orders regarding custody, visitation, and child support for the parties’ daughter. During the proceedings, the issue of Lee’s immigration status arose as it bore upon her ability to work and her financial circumstances. Because of her uncertain immigration status in the United States, Lee, a Singapore national, sought permission to move to Singapore with the parties’ daughter. McKenzie opposed Lee’s request to relocate, and if granted, McKenzie asked the court to impose certain conditions to secure his custody and visitation rights, including undertaking a substantial bond. While the family law proceedings were ongoing, Lee filed the complaint in this case on June 30, 2004.
All the causes of action in that complaint, except false imprisonment and malicious prosecution, which will be addressed separately, arise from the litigation surrounding Lee’s request to relocate to Singapore. Because Lee could not advise the court of her immigration status, she was directed to file with the court and provide to Bender, documentation from either the immigration authority or an immigration lawyer clarifying her immigration status in this country, including variables that could affect her status and if she could avoid deportation. In her complaint, Lee alleges that she gave Brigagliano information so Brigagliano could provide the advisory opinion requested by the court. Although Brigagliano said she would submit an advisory opinion to the court if authorized to do so by McKenzie and Bender, no opinion was submitted. Lee later learned that Brigagliano had given an opinion to Bender who did not submit it to the court. Subsequently, McKenzie and Bender made various representations in the family law proceedings that Lee was not cooperating and not obeying the court order to secure the immigration opinion. Ultimately, Lee paid a different immigration attorney to prepare an opinion on her immigration status and she provided that opinion to the court and defendants.
Lee’s false imprisonment and malicious prosecution claims arise from a portion of the proceedings when McKenzie and the court sought to ascertain Lee’s earnings information. Despite Lee’s claim that she could not be legally employed in the United States, she produced a W-2 form for 2001 showing her income. Her social security number and the name of her employer were redacted. When Lee refused to reveal the redacted information, the family law commissioner directed that a hearing be held before a different court officer to determine whether Lee should be held in contempt of court. At the contempt hearing Lee invoked her Fifth Amendment privilege against self-incrimination and stated, “[W]e had a stipulation that I cannot legally work.” Bender twice disputed that there was any such stipulation. The court did not further address the issue during the contempt proceeding.
The stipulation to which Lee referred occurred during a child support hearing held two years before the contempt hearing when McKenzie, represented by his former attorney, sought to modify his child support payments. McKenzie’s prior counsel asked Lee to produce her green card and employment documents. In response, Lee asked the court to impute income to her because when she had attempted to acquire the requested documentation from the immigration authority she was threatened with deportation. The court relieved Lee of the requirement to obtain documentation from the immigration authority, but directed her to produce any documents in her possession that had been requested by McKenzie’s counsel. Later in that hearing, McKenzie’s counsel offered the following stipulation: “[Counsel]: I guess we have a stipulation. You agree that you have no green card, and you are unable to work at this point?” [¶] [Lee]: Yes. [¶] [Counsel]: And you’ve made no employment efforts to obtain employment because of your status? [¶] [Lee]: No, it would be illegal. [¶] The Court: That’s what [counsel’s] saying. [¶] You can’t look for employment because it would be illegal for you to do so at this point. Is that a yes? [¶] [Lee]: Yes.”
In support of her malicious prosecution and false imprisonment claims in this case, Lee alleges, in effect, that during the contempt proceeding, when Bender disavowed the stipulation Lee reached with McKenzie’s prior counsel, the court allowed questioning that ultimately led to Lee’s incarceration for contempt. After filing a petition for writ of habeas corpus, Lee was released from custody pending resolution of the writ. This court granted Lee’s petition and vacated the contempt and commitment orders on the grounds that Lee had properly invoked her right against self-incrimination regarding the redacted information on the W-2 form, and the contempt order was procedurally flawed. (In re Lee (Aug. 29, 2003, A103035 [nonpub. opn.].)
Bender, Brigagliano, VBN, and McKenzie filed motions to strike plaintiff’s complaint pursuant to section 425.16. Lee opposed the motions. The trial court granted defendants’ special motions to strike, finding that defendants met their burden of establishing that all the causes of action were based on protected activity within the scope of section 425.16, and that Lee had failed to carry her burden of prima facie establishing a right to relief on any cause of action. A judgment of dismissal was entered in favor of defendants. This timely appeal ensued.
DISCUSSION
“Section 425.16 provides, inter alia, that ‘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 or 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).) [¶] Resolution of an anti-SLAPP motion ‘requires the court to engage in 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. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,” as defined in the statute. (§ 425.16, subd. (b)(1).) 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.)” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) Our review of the trial court’s decision is de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325 (Flatley).)
A. Defendants Met Their Burden of Establishing the Complaint is Based on Protected Activity
In evaluating whether defendants met their burden under the first step of the section 425.16 analysis, “the critical consideration is whether the cause of action is based on defendant’s protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Id. at p. 92.) A defendant does not have to establish that the activities are constitutionally protected under the First Amendment as a matter of law. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 820, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) “ ‘If this were the case then the [secondary] inquiry as to whether the plaintiff has established a probability of success would be superfluous.’ ” (Navellier, supra, at pp. 94-95.)
Lee argues that she is not suing for defendants’ allegedly perjurious statements, but only for their concealment of Brigagliano’s advisory immigration status opinion. According to Lee, if she had not included allegations regarding defendants’ false statements and instead relied solely on the concealment, this would not be a suit subject to a motion to strike because such concealment is not protected petitioning activity under section 425.16. We are not persuaded by Lee’s argument.
Section 425.16 defines an “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue,” to include a number of specified acts. (§ 425.16, subd. (e).) But “the categories enumerated there are not all-inclusive.” (Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 1175.) Instead, the statutory language “implies that other acts which are not mentioned are also protected under the statute.” (Ibid.) Thus, it has been held that the definition in subdivision (e) of section 425.16 “places within section 425.16’s purview ‘any written . . . statement or writing made before a . . . judicial proceeding,’ ‘any written . . . statement or writing made in connection with an issue under consideration or review by a . . . judicial body,’ and ‘any other conduct in furtherance of the exercise of the constitutional right of petition.’ (§ 425.16, subd. (e)(1), (2) & (4).)” (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 734.)
It has also been held that statements and conduct protected under the litigation privilege are “ ‘equally entitled to the benefits of section 425.16.’ ” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 (Briggs).) In order to secure the protection of section 425.16, defendants were not required to show that their petitioning conduct was protected by the litigation privilege as a matter of law. The only relevant inquiry under this first step of the section 425.16 analysis is that the record does not show as a matter of law that defendants’ conduct had no “ ‘connection or logical relation’ to an action and [was] not made ‘to achieve the objects’ of any litigation.” (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 422, fn. 5, disapproved on another ground in Silberg v. Anderson (1990) 50 Cal.3d 205, 219.) Here, defendants alleged that the conduct for which Lee seeks damages indisputably occurred in, was related to, or occurred in connection with an issue under consideration or review in the family court proceedings, and thereby is within the scope of protection afforded by the anti-SLAPP statute. (See Briggs, supra, at pp. 1114-1115 [defamation and intentional and negligent infliction of emotional distress causes of action based, in part, on allegations that defendant failed to produce documents in an unrelated civil action were struck under section 425.16, because they all arose from defendant’s statements or writings made in connection with issues under consideration or review by official bodies or proceedings].)
Allegations that defendants’ petitioning activity was undertaken in bad faith or fraudulently does not necessarily remove it from within the protection afforded by section 425.16. Generally, “conduct that would otherwise come within the scope of the anti-SLAPP statute does not lose its coverage . . . simply because it is alleged to have been unlawful or unethical. If that were the test, the statute . . . would be meaningless.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 910-911.) In Flatley, supra, 39 Cal.4th 299, the Supreme Court recognized a limited exception to the protection afforded a defendant under section 425.16 “in those rare cases where the defendant’s assertedly protected speech or petitioning activity is conclusively demonstrated to have been illegal as a matter of law.” (Flatley, supra, at p. 320.) To invoke the exception, the illegality of the defendant’s conduct must be established “either through defendant’s concession or by uncontroverted and conclusive evidence.” (Ibid.) This is not one of the rare cases that falls within the exception identified in Flatley.
Defendants make no concession of any illegal conduct. Nor does Lee even attempt to show the record contains uncontroverted and conclusive evidence that defendants’ conduct was illegal as a matter of law. She contends, however, that defendants are not entitled to section 425.16 protection because by demonstrating defendants concealed from the court Brigagliano’s immigration opinion, and then lied to the court regarding whether Lee was obeying the court’s order to secure an immigration status opinion, she made a prima facie showing that defendants committed criminal acts of perjury, suborning perjury, and deceit in violation of Business and Professions Code section 6128. But the conduct Lee claims to establish her prima facie case of perjury and deceit is not so clear and unequivocal that we can conclude it was illegal as a matter of law.
Business and Professions Code section 6128 provides in relevant part: “Every attorney is guilty of a misdemeanor who . . . . [¶] . . . [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.”
The March 21, 2002, court order that directed Lee to submit an advisory immigration status opinion from an attorney does not identify Brigagliano or direct Lee to speak with her. At the later hearing regarding Lee’s immigration status, the court told Lee that she had misunderstood the court’s March 21, 2002, order that specified methods by which she could verify her immigration status. Moreover, the declarations and correspondence submitted by Bender and Brigagliano, and joined in by McKenzie, expressly dispute Lee’s contentions that defendants concealed Brigagliano’s opinion, or that they made false representations or otherwise misled the court. Because Lee has not demonstrated that defendant’s conduct was illegal “the claimed illegitimacy of the [defendants’] acts is an issue which [Lee] must raise and support in the context of the discharge of [her] burden to provide a prima facie showing of the merits of [her] case.” (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.)
B. Lee Did Not Meet her Burden of Establishing the Probability of Prevailing on Any Cause of Action
In order to meet her burden under the second step of section 425.16, Lee was required to demonstrate the merits of her causes of action “by showing the defendant’s purported constitutional defenses are not applicable to the case as a matter of law or by a prima facie showing of facts which, if accepted by the trier of fact, would negate such defenses.” (Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 824.)
1. All Causes of Action Except Malicious Prosecution
We agree with the trial court that the litigation privilege, embodied within Civil Code section 47, subdivision (b), bars all of the designated causes of action of Lee’s complaint, except her malicious prosecution claim, which we will separately address.
Civil Code section 47, subdivision (b), provides a privilege for “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, supra, 50 Cal.3d at p. 212.) The privilege is “an ‘absolute’ privilege, and it bars all tort causes of action except a claim for malicious prosecution.” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.) “The litigation privilege has been applied in ‘numerous cases’ involving ‘fraudulent communication or perjured testimony.’ ” (Flatley, supra, 39 Cal.4th at p. 322.) Those cases establish “that the privilege ‘has been applied to defeat tort actions based on publications in protected proceedings but grounded on different theories of liability’ [citation], listing several theories of liability, attempted but rejected, including abuse of process, intentional infliction of mental distress inducing breach of contracts, invasion of privacy, fraud, interference with prospective economic advantage, negligent misrepresentation, and negligence. [Fn. omitted.]” (Carden v. Getzoff (1987) 190 Cal.App.3d 907, 913 [perjury]; see Hagberg, supra, at pp. 355, 357 [false arrest and false imprisonment]; Williams v. Taylor (1982) 129 Cal.App.3d 745, 753-754 [slander]; Pettitt v. Levy (1972) 28 Cal.App.3d 484, 487-492 [fraud, negligent misrepresentation, negligence, intentional infliction of mental distress, conspiracy]; Taylor v. Bidwell (1884) 65 Cal. 489, 490 [perjury and subornation of perjury].)
Here, Lee’s causes of action indisputably arise from and seek to impose liability upon defendants for conduct that had “some relation” to family court proceedings. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) Lee argues, however, that her complaint is based on the noncommunicative act of concealment of Brigagliano’s advisory opinion, not the defendants’ alleged false statements regarding their concealment. According to Lee, had she not included allegations regarding defendants’ false statements, and instead relied solely on the concealment, the litigation privilege would not apply. Lee is wrong.
The litigation privilege is “germane to the preparation of documentary evidence and testimony based on such documentation.” (Carden v. Getzoff, supra, 190 Cal.App.3d at p. 914.) Thus, the privilege applies to the concealment of evidence ordered to be produced by the court and the misrepresentation of such concealment in the context of litigation. (See Silberg v. Anderson, supra, 50 Cal.3d at pp. 210, 219-220 [attorney’s alleged concealment of preexisting relationship with psychiatrist, represented as independent and neutral, and use of relationship to influence psychiatrist’s opinion were all acts protected by litigation privilege]; Kupiec v. American Internat. Adjustment Co. (1991) 235 Cal.App.3d 1326, 1333 [insurer’s alleged concealment of insured painting and misrepresentation of concealment, “in their essential nature, [were all] communicative” acts]; Doctors’ Co. Ins. Services v. Superior Court (1990) 225 Cal.App.3d 1284, 1299 [insurer’s alleged concealment of the admitted culpability of its insured, misrepresentation that insured was not at fault, and subornation of its insured to commit perjury during discovery were all “communicative” acts].)
Lee’s arguments essentially are an attempt to analogize the purported concealment of Brigagliano’s opinion to the intentional or negligent spoliation or suppression of evidence, which are not actionable. (Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 477 [no tort cause of action for intentional spoliation or suppression of evidence by persons not parties to the lawsuit]; Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 4 [no tort cause of action for intentional spoliation or suppression of evidence by a party to the lawsuit]; Lueter v. State of California (2002) 94 Cal.App.4th 1285, 1295-1297, 1299 [no tort cause of action for negligent spoliation or suppression of evidence].) As explained by the Supreme Court in Temple, supra, at pp. 472-473: “[P]erjury by a witness, though it distorts the factfinding process and unfairly may deprive a litigant of compensation for wrong, is not actionable in tort. [Citations]. Similarly, a tort claim will not lie for the concealment or withholding of evidence. [Citation.] . . . When a party is unable to expose perjury at trial ‘ “he is without remedy. The wrong, in such case, is of course a most grievous one, and no doubt the legislature and the courts would be glad to redress it if a rule could be devised that would remedy the evil without producing mischiefs far worse than the evil to be remedied. Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice.” ’ ”
Here, “[c]haracterizing [defendants’] conduct as ‘[concealment]’ of evidence does not alter the fact that the ‘[concealment]’ was accomplished entirely by statements made in the litigation.” (Doctors’ Co. Ins. Services v. Superior Court, supra, 225 Cal.App.3d at p. 1299; see Kupiec v. American Internat. Adjustment Co., supra, 235 Cal.App.3d at p. 1333.) The gravamen of Lee’s allegations is that defendants made misrepresentations to her and to the court regarding the immigration consultation with Brigagliano and whether Lee was cooperating and obeying the court’s order to secure an opinion on her immigration status. Lee’s “claims, however styled, are founded upon the utterance[s] of injurious communications in or in connection with the prior [family court proceedings]. [Defendants] cannot be liable without reliance on privileged communications made in the course of a judicial proceeding.” (Doctors’ Co., supra, at p. 1299.)
We are not persuaded by Lee’s argument that if a jury could find that defendants committed the acts she alleged, the matter should not be decided by a special motion to strike under section 425.16. The application of Civil Code section 47, subdivision (b) is absolute in that it “bars a civil action for damages . . . with certain statutory exceptions that do not apply to the present case.” (Hagberg v. California Federal Bank, supra, 32 Cal.4th at p. 360.) “The salutary policy reasons for an absolute privilege supersede individual litigants’ interests in recovering damages for injurious publications made during the course of judicial proceedings.” (Silberg v. Anderson, supra, 50 Cal.3d at pp. 218-219.) “[M]odern public policy seeks to encourage free access to the courts and finality of judgments by limiting derivative tort claims arising out of litigation-related misconduct and by favoring sanctions within the original lawsuit.” (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1063; but see Hagberg, supra, at p. 361 [litigation privilege does not bar a criminal prosecution based on statement or communication encompassing the elements of a criminal offense].)
2. Malicious Prosecution Cause of Action
Lee concedes, and we agree, that family law proceedings cannot give rise to a cause of action for malicious prosecution for the policy reasons set forth in Bidna v. Rosen (1993) 19 Cal.App.4th 27, 32-33. (See also Begier v. Strom (1996) 46 Cal.App.4th 877, 886.) She argues, however, that her malicious prosecution claim is not based on the family law proceedings, but on Bender’s false statements during the contempt hearing over Lee’s assertion of her right not to incriminate herself in the family law case that was ultimately resolved in Lee’s favor. Her argument fails for two reasons. The contempt hearing was not a separate proceeding that would support a cause of action for malicious prosecution. (See Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 637-639 [contempt proceedings seeking sanctions for discovery abuse even when terminated in favor of responding party “are ancillary proceedings without sufficient independence to support a cause of action for malicious prosecution.”].) Moreover, perjury cannot be the basis for a cause of action for damages in a civil action. (Taylor v. Bidwell, supra, 65 Cal. at p. 490; Carden v. Getzoff, supra, 190 Cal.App.3d at p. 915; see Temple Community Hospital v. Superior Court, supra, 20 Cal.4th at p. 472.) Thus, regardless of how Lee phrases it “in legal theories,” the malicious prosecution cause of action is not sustainable. (Carden, supra, at p. 915.)
Defendants Bender, Bragagliano, and VBN, have asked us to take judicial notice of certain documents filed by Lee in the underlying family court action and related to prior appeals in this court, documents in a related federal lawsuit commenced by Lee, and our opinion on Lee’s prior appeals (McKenzie v. Lee (Mar. 30, 2006, A106298, A107867, A109086, A109894 [nonpub. opn.].) On August 22, 2006, we deferred consideration of the request until this time. We now deny the request for judicial notice because the documents are not necessary to resolve this appeal.
DISPOSITION
The judgment filed on June 20, 2005, and the order filed on November 16, 2005, are affirmed. The purported appeal from the notice of entry of the November 16, 2005, order is dismissed. Defendants Susan A. Bender, Christine Brigagliano, and Van Der Hout, Brigagliano & Nightingale, LLP, are awarded costs.
We concur: Pollak, Acting P.J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.