Opinion
NOT TO BE PUBLISHED
APPEALS from an order of the Superior Court of Los Angeles County, No. BC411920, Mary Ann Murphy, Judge.
Law Offices of Nadine M. Jett and Nadine M. Jett, in pro. per., for Plaintiffs and Appellants and Objector and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Joshua C. Traver; Carroll, Kelly, Trotter, Franzen & McKenna, Thomas M. Peabody, and Michael E. DeCoster for Defendant and Respondent.
SUZUKAWA, J.
Kathy Lenk, John Lenk, and their minor children Richard and David (collectively the Lenks) appeal from the grant of Lauren Nguyen’s special motion to strike pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute. The Lenks contend: (1) the trial court erred when it refused to recuse itself; (2) Nguyen’s failure to file an affidavit with her motion required the court to deny the motion; (3) Nguyen’s conduct was illegal and unprotected by section 425.16; (4) the litigation privilege does not apply; (5) the court erred by dismissing their malicious prosecution cause of action; and (6) the court erred by refusing to issue a statement of decision. The Lenks’ counsel, Nadine Jett, filed a separate notice of appeal challenging the court’s imposition of sanctions against her. We conclude the Lenks’ appeal is without merit. However, we agree with Jett that the court’s sanction order must be reversed.
For the sake of clarity, we will refer to an individual member of the Lenk family by his or her first name, with no disrespect intended.
All further undesignated statutory references are to the Code of Civil Procedure.
SLAPP is an acronym for strategic lawsuit against public participation.
FACTUAL AND PROCEDURAL BACKGROUND
Nguyen, a physician, was the pediatrician for twins, Richard and David. According to Nguyen, Richard was evaluated for symptoms indicative of developmental delay. In early 2008, tests indicated that Richard might be autistic. This began a dispute between Kathy, who did not believe the diagnosis was accurate, and Nguyen. The friction led Nguyen to seek a restraining order against Kathy and her husband, John.
On April 16, 2008, Nguyen filed separate applications for a restraining order against Kathy and John pursuant to section 527.6. In her application, Nguyen alleged that Kathy, who was unhappy with the progress of testing for Richard she believed was necessary, threatened to come to Nguyen’s house if her demands were not met. Nguyen claimed that John showed up at her house unannounced and walked into the garage calling her name. Nguyen, who was on medical leave at the time, did not respond. John was met by Nguyen’s husband, who advised John that it was inappropriate to come to the house. John gave the husband a letter, asked that Nguyen deliver it to Kathy, and left.
Although it is not reflected in the record, the parties agree that on May 2, 2008, Nguyen appeared for the hearing on her application for a restraining order against Kathy. Nguyen’s request was denied. The hearing on her application with respect to John was set for the same date. Nguyen did not appear and the matter was taken off calendar.
On April 16, 2009, the Lenks filed a complaint against Nguyen, alleging eight causes of action: (1) breach of confidentiality of patient health care records; (2) breach of the right of privacy; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; (5) slander; (6) libel; (7) abuse of process; and (8) malicious prosecution. The first seven causes of action were based on information Nguyen revealed in her application for the restraining orders or statements she made during the May 2 hearing on her application. The eighth, for malicious prosecution, was based on Nguyen’s unsuccessful attempt to obtain the restraining orders.
On June 22, 2009, Nguyen filed a special motion to strike pursuant to section 425.16. She argued that all of her statements of which the Lenks complained were made in furtherance of her constitutional right to petition. She urged that her statements were made in connection with her application for restraining orders, a judicial proceeding, and were protected by the anti-SLAPP statute. Nguyen contended the Lenks could not establish a probability of prevailing on the merits because her statements were protected by the litigation privilege set forth in Civil Code section 47. Finally, she claimed that the unsuccessful filing of an application for a restraining order could not be the basis of a malicious prosecution action.
The Lenks responded, claiming Nguyen’s motion had to be stricken due to her failure to file a declaration “‘stating facts upon which the liability or defense is based. [Ca Civ Pro § 425.16(b).]’ [Citation.]” They asserted that Nguyen’s conduct was illegal as a matter of law and beyond the protection of the anti-SLAPP statute. They cited various statutes and regulations that Nguyen allegedly violated. The Lenks insisted the litigation privilege did not apply because Nguyen had disclosed confidential medical information in her application for a restraining order that had nothing to do with her request, and concluded they would prevail on the merits.
On August 10, 2009, the trial court conducted the hearing on Nguyen’s motion to strike. After asking counsel to be seated, the court informed them of the following:
“The research attorney assigned to Judge Chirlin and [me] contacted Nadine Jett’s office last fall in connection with a referral regarding her divorce proceedings, made an appointment with her office, canceled the appointment, and never spoke with Ms. Jett. I think she went with another attorney, or something. So I felt that that was a disclosure that had to be made. Does anyone want to comment on that for the record?”
Nguyen’s attorney stated, “I’m okay with it, Your Honor.” Similarly, Jett responded, “I’m fine with it.” The court proceeded to read its tentative ruling, which was to strike the complaint and award Nguyen attorney fees. It then allowed Jett to argue. After listening to argument for several minutes, the court asked Jett how much longer she intended to be. After ascertaining that Jett needed an additional 15 minutes to press her case, the court decided to continue the matter to the next day due to other cases on calendar.
The next day, after discussing procedural matters, Jett stated, “Before I start with my argument, Your Honor, yesterday the court informed me for the first time that the court’s legal research assistant was a client of mine. And since I was not notified of that prior to the commencement of the hearing yesterday, I was not able to discuss that with my client. After I left the hearing yesterday, Monday, which was August 10th, I informed my client of that. And based upon that, that relationship between your legal research assistant and myself, which is an attorney-client relationship, my client is asking that the court not consider any of the legal research performed by that legal research assistant and that the court recuse [itself] from hearing this case based upon the appearance of impropriety and the possibility that there is a disgruntled client that is influencing this courtroom. In addition to that, my client, Mrs. Lenk, also assists me in my office, and I believe that there has been contact between the plaintiff, Mrs. Lenk, and your research assistant in the capacity of her contacting my office as a lawyer.”
After pointing out that the research attorney had not spoken to Jett, the court concluded there was no attorney-client relationship forged. The court reminded Jett that it had advised counsel of the situation the previous day and neither had an issue with the court hearing the matter. It stated, “And now, after the tentative ruling is against counsel, counsel is belatedly requesting me to recuse. There isn’t a basis for recusal. The request to recuse is untimely. But even if it was timely, it’s not a basis. I haven’t considered the research attorney’s memo. I read these papers myself.” The court declined to recuse itself.
During the hearing, Jett requested a written statement of decision. After she concluded her argument, the court granted Nguyen’s motion to strike, awarded attorney fees in the amount of $6,390 against the Lenks and Jett, and declined to issue a statement of decision. On August 13, the Lenks filed a motion renewing their request for a statement of decision. Although the record does not reflect what occurred after the motion was filed, there is no statement of decision.
These timely appeals followed.
DISCUSSION
I. The Court Did Not Err by Refusing to Recuse Itself
The Lenks assert the court’s disclosure of a relationship between their attorney and the court’s research attorney created an appearance of impropriety and provided grounds for the court to recuse itself. While they note that Jett was informed of the fact that the research attorney had contacted her office and had no objection to the court continuing to hear the matter, they try to blunt the effect of their counsel’s waiver by arguing the court’s failure to inform them earlier than the day of the hearing deprived them of notice and due process. The Lenks suggest that had they learned of the situation in a timely fashion, they would have taken steps to protect themselves.
Initially, Nguyen contends the court’s refusal to recuse itself is not the proper subject of an appeal. She argues the Lenks were required to seek review by way of a petition for writ of mandate. We agree. The Lenks’ claim in the trial court and in their opening brief was that the court’s untimely disclosure of the alleged conflict violated their due process right to notice. As a result, appellate review is not available. (Roth v. Parker (1997) 57 Cal.App.4th 542, 547-548 [failure to seek timely writ review constitutes a forfeiture of statutory claim the court did not comply with section 170.3 and nonstatutory due process claim unrelated to judicial bias].)
The Lenks argue for the first time in their reply brief that the bench officer was biased against them. The Lenks point to perceived examples of the court’s impatience with their counsel and assert they support their “contention that Judge Murphy was extremely biased against the Plaintiff.”
Although claims of actual judicial bias are reviewable on appeal (People v. Brown (1993) 6 Cal.4th 322, 334-336), as this contention was not raised below and was mentioned for the first time in the Lenks’ reply brief, we could treat the contention as forfeited. (Roth v. Parker, supra, 57 Cal.App.4th at pp. 548-549.) In any event, on the merits, the Lenks’ claim must be rejected. There is no evidence of judicial bias on this record. The Lenks failed to submit a declaration of prejudice under oath pursuant to section 170.3, subdivision (c)(1) setting forth the basis for their claim of bias. Their attempt to provide the evidence in their reply brief is too late. (Id. at p. 549.)
II. Nguyen’s Motion to Strike Was Not Fatally Defective
The Lenks assert, “Nguyen’s motion is fatally flawed based upon her failure to supply a declaration.” They argue that her counsel’s declaration was inadmissible because it lacked foundation. Thus, they conclude, there was no evidence to support the motion. We are not persuaded.
There is nothing in section 425.16 that requires a party to submit a declaration in support of a motion to strike. The statute provides that in resolving whether a suit is subject to an anti-SLAPP motion, “the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) As we discuss in greater detail below, all of the requisite facts necessary for the trial court to make its determination were contained in the Lenks’ complaint and Nguyen’s application for a restraining order against Kathy and John.
We reject the Lenks’ assertion that Nguyen’s counsel’s declaration lacked foundation. He merely stated that true and correct copies of the Lenks’ complaint and Nguyen’s applications, all of which were matters of public record, were attached to Nguyen’s anti-SLAPP motion. The court reasonably concluded that the attorney of record in the matter had sufficient personal knowledge to establish those limited facts.
In their reply brief, the Lenks raise, for the first time, an additional evidentiary objection relating to a letter purportedly written by John to Kathy that Nguyen attached to her application. Contentions raised for the first time in a reply brief will ordinarily not be considered and we could deem the issue forfeited. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) In any event, even if the evidence was received in error, no prejudice resulted. The trial court relied mainly on the pleadings to grant the motion to strike.
III. Nguyen’s Conduct Was Protected Activity
“‘Section 425.16 provides for a special motion to strike “[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.” (§ 425.16, subd. (b)(1).)’” (Turner v. Vista Pointe Ridge Homeowners Assn. (2009) 180 Cal.App.4th 676, 681-682.) An act in furtherance of a person’s right of petition includes “any written or oral statement or writing made before a... judicial proceeding” (§ 425.16, subd (e)(1)) and “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)(2)).
“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.’ [Citation.]” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) Our review of the trial court’s order is de novo. (Turner v. Vista Pointe Homeowners Assn., supra, 180 Cal.App.4th at p. 682.)
The trial court correctly concluded that Nguyen demonstrated that the acts of which the Lenks complained were in furtherance of her right of petition. The Lenks’ complaint alleged that Nguyen’s statements contained in her application for a restraining order and her statements in open court in support of that application caused their injury. The Lenks do not contest that finding. However, they contend that Nguyen’s conduct was illegal as a matter of law and thus not protected by the anti-SLAPP statute.
In Flatley v. Mauro (2006) 39 Cal.4th 299, the Supreme Court determined that a defendant may be precluded from using the special motion to strike. It concluded “that where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff’s action arises from activity by the defendant in furtherance of the defendant’s exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action.” (Id. at p. 320.) The court concluded the defendant’s conduct in the case before it amounted to extortion as a matter of law and was not protected activity for purposes of section 425.16. (Id. at p. 333.)
The Lenks urge that Nguyen’s conduct was illegal as a matter of law for two reasons. One, she disclosed privileged information in violation of the physician-patient privilege contained in Evidence Code section 994. Two, her disclosure violated their right to privacy as guaranteed by the California Constitution. We examine their claims in turn.
Evidence Code section 994 provides that a patient “has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and physician if the privilege is claimed by: [¶] (a) The holder of the privilege; [¶] (b) A person who is authorized to claim the privilege by the holder of the privilege; or [¶] (c) The person who was the physician at the time of the confidential communication....” There are certain limitations with respect to a physician claiming the privilege that are not relevant here.
The difficulty with the Lenks’ argument is that even if we were to assume that Nguyen unlawfully disclosed privileged information, it is not the type of illegal conduct that would bar the application of the anti-SLAPP statute. We find the case of Cabral v. Martins (2009) 177 Cal.App.4th 471 instructive. There, the plaintiff sued “several attorneys who had represented her ex-husband, his siblings, and/or their mother.” (Id. at p. 475.) The trial court granted the attorneys’ special motion to strike. On appeal, as here, the plaintiff did not contest that the acts of which she complained were undertaken in connection with a judicial proceeding. Her sole contention was that their activity was not protected because it violated the child support evasion statutes. The appellate panel concluded that “[e]ven if the [attorneys’] actions had the effect of defeating or forestalling [the plaintiff’s] ability to execute her judgment for child support, thereby [according to the plaintiff] violating the child support evasion statutes, this is not the kind of illegality involved in Flatley v. Mauro [(2006)] 39 Cal.4th 299....” (Cabral, supra, at p. 481.)
Similarly, Nguyen’s alleged violation of a statutory prohibition against the release of confidential information is not the type of activity that would prevent her from seeking the protection of the anti-SLAPP statute. (See also G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 616 [defendant who filed an unredacted credit report in violation of Cal. Rules of Court, rule 1.20 did not commit the type of criminal activity addressed in Flatley v. Mauro, supra, 39 Cal.4th 299]; Mendoza v. ADP Screening and Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [defendant allegedly engaged in conduct made illegal by statute, and the court concluded “that the Supreme Court’s use of the phrase ‘illegal’ [in Flatley] was intended to mean criminal, and not merely violative of a statute”].)
The Lenks’ second theory of illegality is that Nguyen violated their right of privacy under the California Constitution. As Nguyen correctly observes, the Lenks failed to present this theory in the trial court. Here, they simply choose to ignore that oversight and do not attempt to explain why we should consider their new contention on appeal. We conclude they have forfeited their claim. (Colony Ins. Co. v. Crusader Ins. Co. (2010) 188 Cal.App.4th 743, 750-751.)
IV. The Lenks Cannot Demonstrate They Have a Probability of Prevailing
After finding that Nguyen had met her burden with respect to the first prong of the anti-SLAPP test, the court moved to the question of whether the Lenks had presented sufficient evidence to demonstrate a probability of prevailing on the merits. It concluded that the Lenks’ first seven causes of action were subject to the litigation privilege, which provided Nguyen with a complete defense. As to their eighth cause of action, malicious prosecution, the court found that such an action could not be based upon Nguyen’s unsuccessful attempt to obtain a restraining order pursuant to section 527.6.
The Lenks assert the litigation privilege does not apply because Nguyen breached a duty of confidentiality, the litigation privilege must give way to the physician-patient privilege, and the communication set forth in Nguyen’s application for a restraining order was not necessary to achieve the goal of the litigation and had no relation to the action. We disagree.
The litigation privilege set forth in Civil Code section 47, subdivision (b) generally “‘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.’” (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955, quoting Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) There is no question that the communication at issue was made in a judicial proceeding by a litigant, and the Lenks do not claim otherwise. Before examining whether the communication was necessary to achieve the object of the litigation or had some connection to the action, we turn to the Lenks’ argument that the privilege does not apply due to Nguyen’s violation of a duty of confidentiality.
As we understand their argument, it is that the privilege does not apply due to the application of Civil Code section 47, subdivision (d)(2)(C). The Lenks assert that “California Civil Code section 47(d)(2) makes it clear that: ‘nothing in paragraph (1) shall make privileged any communication to a public journal that does any of the following:... [(C)] Violates any requirement of confidentiality imposed by law....’” (Emphasis omitted.) However, as Nguyen points out, the reference to paragraph (1) in subdivision (d)(2) applies to a “true report in, or a communication to, a public journal” of certain proceedings. (Civ. Code, § 47, subd. (d)(1).) The statutory limitation to the application of the litigation privilege simply does not apply to communications made in a judicial proceeding.
Next, the Lenks suggest that if their “[c]hildren’s Right to Privacy outweighs what Nguyen asserts to be her Right to Petition, then the children’s Constitutional Right to Privacy should prevail over Nguyen’s litigation privilege or right to petition.” Even assuming the Lenks presented sufficient evidence to establish a claim for a breach of their right to privacy under the California Constitution, our Supreme Court has concluded “that the litigation privilege applies even to a constitutionally based privacy cause of action.” (Jacob B. v. County of Shasta, supra, 40 Cal.4th at p. 961.)
We proceed to the Lenks’ complaint that a three-page letter Nguyen attached to her application for a restraining order was not necessary to achieve the goal of the litigation and had no connection to the action. Their premise is that Nguyen prepared the letter for the purpose of responding to a complaint Kathy had lodged with an insurance company. Citing Mansell v. Otto (2003) 108 Cal.App.4th 265, they conclude that Nguyen’s disclosure to the insurance company was noncommunicative conduct that is not subject to the litigation privilege. The problem with the Lenks’ argument is that they did not sue Nguyen for communicating with the insurance company; their complaint alleged Nguyen had disclosed confidential information in a judicial proceeding.
The Lenks also urge the letter had no logical relation to the litigation because it contained only a defense to Kathy’s claim of misconduct presented to the insurance company. They are incorrect. The portion of the letter that referred to Richard’s medical condition served as background material to explain the relationship between the parties. It went on to discuss how the relationship broke down and set forth the conduct of the Lenks that necessitated the application for a restraining order. Where, as here, a communication is lodged in a judicial proceeding, the requirement that the statement have a logical relationship to the litigation “must not be rigidly applied: The privilege should be denied only where it is so palpably irrelevant to the subject matter of the action that no reasonable person can doubt its irrelevancy.” (Sacramento Brewing Co. v. Desmond, Miller & Desmond (1999) 75 Cal.App.4th 1082, 1089.) The trial court reasonably concluded that the letter was the type of information “a judge ruling on [a request for a restraining order] would like to see. It was perfectly appropriate.” We conclude the letter had a logical relation to the litigation. For this same reason, we find the communication was in furtherance of the object of the litigation.
Having determined that the litigation privilege applies and provides Nguyen with a complete defense to their first seven causes of action, the Lenks failed to demonstrate a probability of prevailing on them. This leads to their final claim for malicious prosecution. Although they acknowledge that such an action cannot arise from the unsuccessful filing for a restraining order pursuant to section 527.6 (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563 (Siam)), the Lenks assert the case should not apply here because Nguyen failed to appear for the hearing. Not only do they fail to cite any authority for their argument, they do not explain why the facts of this case provide a reason not to apply the bar set forth in Siam.
As alleged in the Lenks’ complaint and supported by evidence in the record, Nguyen filed two applications for a restraining order: one against Kathy and another against John. The portion of each application that described the Lenks’ conduct was identical. The hearings were set for the same day, May 2, 2008. After a full hearing in Nguyen’s case against Kathy, the request for a restraining order was denied. Nguyen’s failure to press the identical claim against John provides no basis to not apply the principles of Siam. That court concluded it is more important to provide a streamlined procedure to allow individuals who believe they are being threatened to seek protection than to allow an aggrieved defendant the remedy of a malicious prosecution suit. (Siam, supra, 130 Cal.App.4th at p. 1573.) We agree, and nothing that occurred in this case justifies departing from Siam’s holding.
V. No Statement of Decision Was Required
Citing DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562 (DuPont), the Lenks contend the trial court erred when it denied their request for a statement of decision. We disagree.
In DuPont, the appellate panel reversed the grant of a motion to strike under the anti-Slapp statute. In remanding the case to the trial court for a determination of whether the plaintiffs could establish a probability they would prevail, the DuPont court stated, “This latter determination cannot be based on allegations but must be based on evidence, and if it results in a judgment striking the complaint, should be supported by a statement of decision.” (DuPont, supra, 78 Cal.App.4th at p. 564.) The court did not mention the subject of a statement of decision again; nor did it explain the basis for its conclusion that one was required.
In Lien v. Lucky United Properties Investment, Inc. (2008) 163 Cal.App.4th 620 (Lien), the court dealt squarely with the issue of whether a trial court is required to issue a statement of decision supporting its order granting an anti-SLAPP motion. Noting that the DuPont court’s reference to the necessity of a statement of decision was “dicta that has not been adopted by any subsequent case” (id. at p. 624), the Lien court recognized the general rule that limited the requirement of a statement of decision to trials. It acknowledged there were certain exceptions in situations where there were important issues at stake, when in ruling on a motion the court tried issues of fact, and the absence of factual findings made review problematic. The panel observed that courts ruling on anti-SLAPP motions do not weigh credibility or otherwise evaluate the comparative strength of the competing evidence. Under such circumstances, it concluded, the absence of factual findings does not preclude effective appellate review. The court determined that “[t]hese factors weigh heavily against creating the exception sought by appellants, and we decline to depart from the general rule that a statement of decision is not required for an order on a motion.” (Id. at p. 625.) We agree with the reasoning of the Lien court.
Moreover, the Lenks do not attempt to explain why the court’s tentative ruling, which became the basis for its final order, precludes effective appellate review. The court read the detailed tentative into the record. Its ruling, which included extensive case citations, took up eight pages of the reporter’s transcript and explained why the Lenks had failed to demonstrate a probability of success on the merits. We reject the Lenks’ attempt to exalt form over substance.
VI. The Attorney Fee Order Against the Lenks’ Counsel Was Improper
The court awarded Nguyen attorney fees in the amount of $6,390 against the Lenks and their attorney of record, Nadine Jett. Jett filed a separate notice of appeal challenging the award against her. She argues the court improperly relied on section 425.16, subdivision (c) as authority for the sanction. We agree.
In the recent case of Moore v. Kaufman (2010) ___ Cal.App.4th ___ [2010 Cal.App. Lexis 1813], our colleagues in Division One concluded that section 425.16 does not authorize an award of attorney fees against a party’s attorney. We concur. Although subdivision (c) allows the court to assess attorney fees under section 128.5 against a party, the party’s attorney, or both if it “finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, ” such an award may only be granted to “a plaintiff prevailing on the motion.” That was not the case here. Nguyen, the prevailing party, was the defendant. The court properly awarded Nguyen attorney fees, however, it was not authorized by section 425.16 to order Jett to pay the fees.
DISPOSITION
We concur: EPSTEIN, P.J., WILLHITE, J.