Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C0700601
Lambden, J.
Terry McMillan filed a complaint against Jonathan Plummer and Attorney Dolores S. Sargent; Sargent had represented Plummer in the divorce proceeding involving McMillan and Plummer. McMillan alleged causes of action for false light, invasion of privacy, and intentional infliction of emotional distress against Plummer and Sargent. Her pleading also contained two causes of action against Plummer relating to a prior restraining order. She also included a cause of action seeking a declaration that a release signed by Sargent and her was void.
Sargent and Plummer filed separate motions to strike McMillan’s complaint pursuant to Code of Civil Procedure section 425.16, known as the anti-SLAPP (strategic lawsuit against public participation) statute. The trial court granted Sargent’s motion as to all four causes of action alleged against her. The court granted Plummer’s motion as to the false light and invasion of privacy causes of action, but denied his motion as to McMillan’s other claims against him.
All further unspecified code sections refer to the Code of Civil Procedure.
Plummer appeals, arguing that the lower court erred in denying his special motion to strike McMillan’s claim against him for intentional infliction of emotional distress. McMillan also appeals, asserting that the court erred in granting Sargent’s anti-SLAPP motion and in granting Plummer’s anti-SLAPP motion as to the false light and invasion of privacy causes of action. She also claims that the court improperly ignored her first amended complaint that added claims for extortion and abuse of process. This court on its own motion consolidated the appeals. We affirm the lower court’s judgment.
BACKGROUND
McMillan is a well-known novelist and screenwriter. She has written six books, which have sold tens of millions of copies. Two of her books, Waiting to Exhale and How Stella Got Her Groove Back, were made into theatrical films and McMillan co-wrote the screenplay for these films. In the summer of 1995, McMillan went to Jamaica on vacation and met and became romantically involved with Plummer, who was 20 years old and unemployed at the time. Plummer proposed to McMillan in 1996. McMillan told him that she could not get married without a prenuptial agreement as she wanted her son to inherit her assets. Each party retained separate attorneys and an agreement was reached on August 29, 1998. They were married a week later on September 5, 1998.
During the marriage, McMillan stated that she gifted Plummer $150,000 for being the inspiration for How Stella Got Her Groove Back. This book was about how a middle-aged woman became romantically involved with a younger man. She also lent Plummer money to help him start a dog grooming business.
In December 2004, Plummer told McMillan that he was gay. McMillan and Plummer separated on December 21, 2004, and McMillan filed for divorce on January 20, 2005. Plummer then sought an annulment.
In March 2005, Plummer retained Sargent, a certified family law specialist, to represent him in the dissolution proceedings and to help him challenge the prenuptial agreement he signed prior to the marriage. The relationship between Plummer and McMillan and their respective counsel was contentious and the media broadcast the parties’ comments about each other. No party requested that the court seal the divorce proceedings.
The media coverage of the divorce was extensive. Matier and Ross of the San Francisco Chronicle interviewed Plummer. On July 12, 2005, Sargent and Plummer appeared on Good Morning America. McMillan appeared on the Today and Tavis Smiley’s Shows. Both McMillan and Plummer appeared together on the Oprah Winfrey Show. Additionally, Plummer wrote and began promoting a book with the working title, How Stella Lost Her Groove.
On October 4, 2005, McMillan and Plummer ended their marriage and entered into a settlement agreement and an exchange of releases. The settlement agreement provided that neither McMillan nor Plummer shall “contact, molest, harass, attack, strike, threaten sexually assault, batter, telephone, send any messages to, follow, stalk, destroy any personal property, or disturb the peace of the other.” It further specified that they both “shall stay at least 100 yards away from the other, the other’s home/residence, and the other’s place of business.”
The settlement agreement contained a number of release provisions. One provision stated in relevant part: “The court finds that petitioner and respondent agree that by this Further Judgment, he/she intends to settle all aspects of his/her marital rights. Each of the parties shall also release the other and the other’s heirs, representatives, successors and assigns of and from any and all other claims, demands, costs, expenses, liabilities, actions and causes of action based on, arising out of, or in connection with any matter, fact, or theory occurring prior to the execution of this Further Judgment. The court finds that each of the parties agrees and understands that there is a risk that subsequent to the execution of this Further Judgment either of them may incur or suffer loss, damage or injuries which are in some way caused by, or related to, the matters released in this section, which are unknown or unanticipated at the time this Further Judgment is executed. The court finds that each party hereby assumes said risk and agrees to hold the other party harmless therefrom.” The release also contained a Civil Code section 1542 waiver.
On this same date, October 4, 2005, McMillan signed a mutual general release between Sargent and her. The release provided the following: “McMillan hereby releases and discharges Sargent of and from any and all claims, demands, debts, liabilities, obligations, costs, expenses, damages, actions and causes of action, of whatsoever kind or nature, whether known or unknown, based upon, arising out of, or connected directly or indirectly with the McMillan/Plummer Dissolution.” The release further stated: “McMillan agrees that she had an opportunity to obtain independent counsel of her choice to review this Mutual General Release. She is signing this Release of her own free will, free from coercion and not under duress.” The release also contained a Civil Code section 1542 waiver.
On March 21, 2007, McMillan filed a complaint against Plummer and Sargent. In her complaint, she alleged that she did not know that Plummer was gay at the time of their marriage and that he married her to obtain his United States citizenship. She charged that, during the marriage, Plummer embezzled money from McMillan’s bank account, stole artwork, and committed adultery with other men. She also asserted that Sargent, who represented Plummer, “should have known that the prenuptial agreement was valid....” She further maintained that Sargent, “as part of a plan between her and Jonathan Plummer to wrongfully get Jonathan Plummer funds he was not entitled to and to get Dolores Sargent counsel fees[,] manufactured the claim that the prenuptial agreement was invalid and unenforceable.” She declared that Sargent and Plummer “knew... that false facts set forth in the legal proceedings would get widespread media and Internet attention, would cause plaintiff to fear for her life, because of the possibility of AIDS, and would cause permanent damage to Terry McMillan and her son, and it did.” In her pleading, she claimed that both Sargent and Plummer knew that the facts and arguments urged by them to set aside the prenuptial agreement were false and for the purpose of creating a “smear campaign....”
McMillan’s pleading included causes of action against both Plummer and Sargent for intentional infliction of emotional distress, false light, and violation of her privacy. She alleged against Plummer a fourth cause of action for damages for violating the restraining order and a fifth cause of action seeking a judgment that he violated court orders and an order to enforce the restraining provisions of the agreement. Additionally, she set forth a sixth cause of action against Sargent, which sought a declaration that “the release signed by Terry McMillan for the benefit of Dolores Sargent [was] null and void.”
Sargent and Plummer advised McMillan that they would be filing anti-SLAPP motions against McMillan’s complaint. McMillan’s counsel asked the parties to refrain from filing their motion until after the court could consider her motion to seal the file, which McMillan planned to file. They agreed to this request and the parties signed a stipulation providing that the 60-day period for filing a special motion to strike would be extended to permit McMillan to file a motion for a protective order. The court signed a stipulated order, which was filed on May 11, 2007. This order stated that Plummer and Sargent informed McMillan of their intention to file a special motion to strike under section 425.16 and that McMillan responded by stating that she planned to move to seal the file. The order further confirmed that the parties had agreed “in an effort to conserve judicial and litigation resources” “to delay filing of the Motions to Strike to enable proper preparation and to allow plaintiff sufficient time to set a motion to seal the file.” The order specified that the time within which Sargent and Plummer “must file a special motion to strike the complaint” under section 425.16 “is extended to and including June 26, 2007.”
McMillan did not file her motion to seal until June 11, 2007, and the hearing was set for July 25, 2007; thus, the hearing on McMillan’s motion was to be after the deadline for filing the anti-SLAPP motions. On June 14, 2007, counsel for McMillan asked counsel for Plummer to extend the deadline to file the anti-SLAPP motions until after the court decided McMillan’s pending motion to seal and for a protective order. The e-mail from counsel for McMillan stated in relevant part: “To the extent that your clients would be more comfortable with a date certain, and in light of the fact that argument on the pending motion is scheduled for July 25 and well may not be ruled on from the bench, we request an extended deadline of August 8.” Counsel for Sargent and Plummer agreed to wait to give the trial court time to rule on the motion to seal. Specifically, counsel for Plummer agreed to the further extension requested only on the condition that McMillan would not seek any further delay in the filing of the SLAPP motion, that she would not seek to postpone the hearing once the SLAPP motion had been set by the court, and that the provisions of the original stipulated order remained in effect.
Counsel for McMillan prepared the stipulated order. Pursuant to the stipulation, the court filed its order on June 27, 2007, which stated that Sargent and Plummer “shall delay filing of their SLAPP Motions until the later of (i) the date the court decides plaintiff’s Motion to Seal and for a Protective Order or (ii) August 8, 2007....” The order also specified that McMillan “shall make no further request for a continuance of the filing of defendants’ SLAPP Motions....”
Subsequently, on September 12, 2007, when filing the reply papers on the anti-SLAPP motion, counsel for Sargent submitted a declaration to the court asserting that the stipulated order prepared by counsel for McMillan incorrectly stated the “later of” when it should have read “the earlier of....”
The trial court denied McMillan’s motion to seal and for a protective order and notice of entry of this order was served on July 30, 2007. On August 1, 2007, counsel for McMillan sent a letter to the attorneys for Plummer and Sargent and informed them that McMillan planned to file a first amended complaint. On August 2, 2007, Sargent and Plummer separately filed pursuant to section 425.16 special motions to strike McMillan’s complaint.
McMillan attempted to file a first amended complaint, which the trial court stamped as “received” on August 6, 2007. This pleading was essentially the same as the original complaint but it added a seventh cause of action for extortion and an eighth cause of action for abuse of process.
On October 18, 2007, the court granted Sargent’s special motion to strike all of McMillan’s causes of action against her. It granted Plummer’s special motion to strike with respect to McMillan’s false light and invasion of privacy causes of action. It denied Plummer’s motion with respect to the intentional infliction of emotional distress claim and the two causes of action regarding the restraining orders. The court awarded Plummer attorney fees in the amount of $8,000.
Both McMillan and Plummer separately filed timely notices of appeal. This court on its own motion consolidated the appeals.
DISCUSSION
I. The Anti-SLAPP Statutes and Standard of Review
Section 425.16, commonly referred to as the anti-SLAPP law, provides in relevant part: “(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly. [¶] (b)(1) 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. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. [¶] (3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination....”
Section 425.16, subdivision (e) reads: “As used in this section, ‘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’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”
A cause of action does not “arise from” protected activity simply because it is filed after protected activity took place. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76-77.) Nor does the fact “[t]hat a cause of action arguably may have been triggered by protected activity” necessarily entail that it arises from such activity. (Id. at p. 78.) The trial court must instead focus on the substance of the plaintiff’s lawsuit in analyzing whether the allegation involves protected activity. (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 413-414; see City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.) “In performing this analysis, the Supreme Court has stressed, ‘the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.]’ [Citation.] In other words, ‘the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.]’ ” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 670.)
When causes of action contain allegations of both protected and unprotected conduct, they are considered to be mixed causes of action. “[W]here a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is ‘merely incidental’ to the unprotected conduct....” (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 103; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1245; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP, supra, 133 Cal.App.4th at p. 672 [referring to and applying the “apparently unanimous conclusion of published appellate cases” that the anti-SLAPP statute applies to mixed causes of action unless the protected conduct is incidental to the unprotected conduct].)
Under the statute, the court makes a two-step determination: “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)’ [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1)....)” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier); see also Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “Only a cause of action that satisfies both prongs of the anti-SLAPP statute––i.e., that arises from protected speech or petitioning and lacks even minimal merit––is a SLAPP, subject to being stricken under the statute.” (Navellier, supra, at p. 89.)
We review an order denying an anti-SLAPP special motion to strike de novo. (Scott v. Metabolife Internat., Inc., supra, 115 Cal.App.4th at p. 413; ComputerXPress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.) We therefore review independently whether McMillan’s claims arise from the exercise by Plummer or Sargent of a valid right of free speech or petition activity and, if so, whether McMillan has established a probability of prevailing on this cause of action. (See, e.g., Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456.) To establish the probability of prevailing, the plaintiff “need only have ‘ “stated and substantiated a legally sufficient claim. ” ’ [Citation.] ‘Put another way, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ’ ” (Navellier, supra, 29 Cal.4th at pp. 88-89.) “The process the court uses in determining the merits of the motion is similar to the process used in approaching summary judgment motions. The evidence presented must be admissible [citation] and the trial court does not weigh the evidence.” (Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1188.) The court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2); see also Navellier, supra, 29 Cal.4th at p. 89.) “[A] probability of prevailing is established if the plaintiff presents evidence establishing a prima facie case which, if believed by the trier of fact, will result in a judgment for the plaintiff.” (Mattel, Inc. v. Luce, Forward, Hamilton & Scripps, supra, at p. 1188.)
II. Plummer’s Appeal
The trial court denied Plummer’s anti-SLAPP motion to strike McMillan’s claim of intentional emotional distress. The court found that the “gravaman of this cause of action as to Plummer is defendant’s deception of plaintiff for his own advantage [and therefore this] cause of action is not subject to [the] SLAPP motion.” Plummer contends that this ruling was error and that the gravaman of McMillan’s complaint was her attempt to chill his constitutional right to free speech.
A. Protected Activity
Plummer argues that McMillan’s complaint and declaration establish that her claim of intentional infliction of emotional distress was based on the comments he made to the press and public in connection with their highly publicized divorce and during the promotion of his own book. He maintains that he therefore satisfied the threshold test that the claim of intentional infliction of emotional distress arose from his exercise of a valid right of free speech or petition activity.
In her allegation for intentional infliction of emotional distress, McMillan incorporated all of the earlier allegations set forth in her complaint and added the following: “The foregoing acts, done intentionally, maliciously and recklessly, meant to harm plaintiff, did harm plaintiff, put her in fear of life and safety and thus and therefore constitute an intentional infliction of emotional distress.” The general allegations against Plummer incorporated into the emotional distress cause of action included the following: Plummer married McMillan knowing he was gay in order to obtain United States citizenship; he embezzled money, stole artwork, and had sexual relationships with men while married to McMillan; he used the legal proceedings and challenged the prenuptial agreement to garner widespread media and Internet attention with the purpose of injuring McMillan and her son; he “on several occasions contacted, attacked, harassed and sent messages to Terry McMillan, lied about his previously homosexual affairs, putting Terry McMillan in fear of her life, and further, made her fearful either he or a third party would physically harm her, and disturbed the peace and privacy of Terry McMillan”; and he gave statements to the media, participated in interviews, and threatened to write about McMillan as part of a plan to injure and harm her and to generate income for himself.
Additionally, McMillan submitted her declaration for the court’s consideration. She asserted that Plummer gained unauthorized access to her bank account and took hundreds of thousands of dollars from her without her knowledge. She also alleged that he stole artwork from her. In December 2004, Plummer told her that he was gay and she learned that he had many male sexual partners both before and during their marriage. Further, McMillan stated that Plummer admitted in a published magazine interview that he had cheated on her during the marriage. After Plummer had moved out from the home and then returned to pack some of his clothing in January 2005, Plummer threatened her and McMillan stated that she was afraid that he was going to hurt her. A couple of days later, McMillan stated that, while she was in the home, Plummer broke into her house and removed four pieces of her artwork. When she told him that he could not take the artwork, he became angry and would not leave until she called the police. He left and took the artwork with him. McMillan asserted that, as a consequence, she was having trouble sleeping.
Plummer objected to significant portions of McMillan’s declaration, and the trial court sustained many of these objections. We consider only the admissible portions of McMillan’s declaration.
McMillan also declared that Plummer made comments to the media that harmed her, including an appearance on Good Morning America and an interview with Matier & Ross. She asserted that the publicity made her appear as being against gay people when she was not against gay people, but just against her husband’s being gay. She noted that the publicity created by Plummer caused her “a great deal of distress” and made her “fear” for her physical safety in her own home.
After reviewing McMillan’s pleading and declaration, we agree with the lower court that the allegations of protected activity, although integrated into the intentional infliction of emotional distress cause of action, were incidental to the unprotected activity underlying this claim. (See Salma v. Capon (2008) 161 Cal.App.4th 1275, 1287.) It is true that some of the acts underlying this claim––such as, Plummer’s appearances in the media, his legal challenges to the prenuptial agreement, the documents filed in connection with the divorce proceeding, and his violations of the protective order––were based on protected activity. However, we conclude that the bulk of McMillan’s claim regarding intentional infliction of emotional distress is that she was injured by Plummer’s failure to tell her he was gay, by his sexual relations with other men during the marriage that increased her risk of being exposed to sexually transmitted diseases, by his taking her money and other valuables, by his marrying her just to establish his United States citizenship, and by his threatening her after she learned he was gay. We therefore conclude that the protected activity was incidental to the emotional distress claim, which was primarily based on Plummer’s deceit.
Accordingly, we agree with the lower court that Plummer has failed to establish the threshold requirement of protected activity and therefore it correctly denied his anti-SLAPP motion as to the intentional infliction of emotional distress cause of action.
B. Costs and Attorney Fees
McMillan argues that Plummer’s appeal is frivolous and requests costs and attorney fees pursuant to section 425.16, subdivision (c). Plummer also requests attorney fees on appeal pursuant to section 425.16, subdivision (c), in the event that we conclude that the lower court should have granted the special motion to strike the claim of intentional infliction of emotional distress. Since we are affirming the lower court’s ruling on Plummer’s special motion to strike, we deny Plummer’s request for attorney fees.
Section 425.16, subdivision (c) provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion....”
We also reject McMillan’s request for attorney fees. We conclude that Plummer’s appeal was not frivolous as McMillan’s cause of action for intentional infliction of emotional distress arose from some protected activity. Although we have concluded that the protected activity underlying the intentional infliction of emotional distress claim was incidental, Plummer’s argument had some merit. Since McMillan is the prevailing party on Plummer’s appeal, she is entitled to the costs of appeal.
III. McMillan’s Appeal
On appeal, McMillan mounts essentially three challenges to the lower court’s judgment. She argues that the court improperly considered her original complaint rather than her first amended complaint and that the special motions to strike were void once she filed her first amended complaint. Additionally, McMillan argues that the lower court erred in finding that Sargent and Plummer met their burden of establishing that her claims arose out of protected activity. Finally, she contends that the lower court erred in determining that she did not present sufficient evidence to show a probability of prevailing on each of her claims. We consider each of her contentions.
A. Considering the Original Rather than the First Amended Complaint
On August 2, 2007, McMillan and Sargent separately filed pursuant to section 425.16 special motions to strike McMillan’s complaint. McMillan attempted to file a first amended pleading and the court clerk stamped it as “received” on August 6, 2007. When ruling on the special motions to strike, the trial court refused to consider McMillan’s first amended complaint.
McMillan contends that the lower court erred by considering her original pleading rather than her first amended complaint. She maintains that her filing of the first amended complaint rendered the special motions to strike moot. To support this argument she cites with no discussion a federal case. (Optinrealbig.com LLC v. Ironport Systems, Inc. (N.D. Cal. 2004, No. C04-1687 SBA) 2004 WL 1737275 [finding that plaintiff’s right to amend complaint trumps defendant’s anti-SLAPP motion].) We are not bound by a federal court decision (see, e.g., People v. Avena (1996) 13 Cal.4th 394, 431), especially when the issue is the proper procedure when applying the state anti-SLAPP statute.
McMillan acknowledges that a state case, Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049 (Sylmar), addresses the question before us. She claims, however, that the lower court in the present case wrongly applied Sylmar. We disagree.
In Sylmar, the defendant filed a cross-complaint alleging several causes of action, including one for fraud. The plaintiff filed an anti-SLAPP motion against the fraud claim and, prior to the hearing on the anti-SLAPP motion, the defendant amended the cross-complaint to provide more detail regarding the fraud cause of action. (Sylmar, supra, 133 Cal.App.4th at p. 1053.) The trial court granted the anti-SLAPP motion as to the fraud cause of action in the original cross-complaint. (Ibid.) On appeal, the defendant in Sylmar argued that the filing of the amended cross-complaint was a matter of right under section 472, and therefore the trial court should not have ruled on the motion to strike. (Sylmar, at p. 1054.) The reviewing court, in rejecting the defendant’s argument, relied on Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074 (Simmons), which held that there is no express or implied right in section 425.16 to amend a pleading to avoid an anti-SLAPP motion and a party should not be able to use “an amendment to defeat the legislative purpose of section 425.16[.]” (Sylmar, supra, 122 Cal.App.4th at p. 1055.)
As the Simmons court explained: “In enacting the anti-SLAPP statute, the Legislature set up a mechanism through which complaints that arise from the exercise of free speech rights ‘can be evaluated at an early stage of the litigation process’ and resolved expeditiously. [Citation.] Section 425.16 is just one of several California statutes that provide ‘a procedure for exposing and dismissing certain causes of action lacking merit.’ [Citation.] [¶] Allowing a SLAPP plaintiff leave to amend the complaint once the court finds the prima facie showing has been met would completely undermine the statute by providing the pleader a ready escape from section 425.16’s quick dismissal remedy. Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading. This would trigger a second round of pleadings, a fresh motion to strike, and inevitably another request for leave to amend. [¶] By the time the moving party would be able to dig out of this procedural quagmire, the SLAPP plaintiff will have succeeded in his goal of delay and distraction and running up the costs of his opponent. [Citation.] Such a plaintiff would accomplish indirectly what could not be accomplished directly, i.e., depleting the defendant’s energy and draining his or her resources. [Citation.] This would totally frustrate the Legislature’s objective of providing a quick and inexpensive method of unmasking and dismissing such suits. [Citation.]” (Simmons, supra, 92 Cal.App.4th at pp. 1073-1074; see also Sylmar, supra, 122 Cal.App.4th at pp. 1055-1056; Salma v. Capon, supra, 161 Cal.App.4th at p. 1294 [“Requiring the trial court to analyze the amended claims under section 425.16 simply because the claims were amended before the court ruled on the first motion to strike would cause all of the evils identified in Simmons and would undermine the legislative policy of early evaluation and expeditious resolution of claims arising from protected activity”].)
McMillan claims that the facts of the present case are different than those in Sylmar because she told Sargent and Plummer that she was going to file her first amended complaint before they had filed their anti-SLAPP motions and before they could legally file the motions under the court order of June 27, 2007. McMillan claims that the special motions to strike were premature and filed in violation of the June 27 court order.
This June 27, 2007 order stated that Sargent and Plummer agreed to delay filing their SLAPP motions until “the later of (i) the date the court decides plaintiff’s Motion to Seal and for a Protective Order or (ii) August 8, 2007....” Subsequently, in connection with the papers filed in the trial court regarding the special motion to strike, counsel for Sargent filed a declaration stating that this stipulated order, which had been prepared by counsel for McMillan, incorrectly stated “the later” rather than “the earlier.” McMillan responds that there was no typographical error.
After reviewing the record, we conclude that the attorneys for Plummer and Sargent did not agree to wait until August 8, 2007, to file their anti-SLAPP motions. When Sargent and Plummer first advised McMillan that they would be filing anti-SLAPP motions, McMillan’s counsel asked the parties to wait to file their motions until after she filed and the court decided McMillan’s request to seal the file. On May 11, 2007, the court filed a stipulated order stating that Plummer and Sargent had informed McMillan of their intention to file a special motion to strike under section 425.16 and that McMillan responded by stating that she planned to move to seal the file. The order stated that the parties agreed “in an effort to conserve judicial and litigation resources” “to delay filing of the Motions to Strike to enable proper preparation and to allow plaintiff sufficient time to set a motion to seal the file.” The order provided that the time within which Sargent and Plummer “must file a special motion to strike the complaint” under section 425.16 “is extended to and including June 26, 2007.”
McMillan delayed filing her motion to seal and the hearing on her motion was not scheduled until July 25, 2007, after the June 26, 2007 date for filing the anti-SLAPP motions. On June 14, 2007, counsel for McMillan sent an e-mail to counsel for Plummer requesting another extension for the anti-SLAPP motions until after the court decided McMillan’s pending motion to seal and for a protective order. The e-mail from counsel for McMillan stated in relevant part: “To the extent that your clients would be more comfortable with a date certain, and in light of the fact that argument on the pending motion is scheduled for July 25 and well may not be ruled on from the bench, we request an extended deadline of August 8.” Counsel for Sargent and Plummer agreed to wait to give the trial court time to rule on the motion to seal. Specifically, counsel for Plummer agreed to the further extension requested only on the condition that McMillan would not seek any further delay in the filing of the SLAPP motion, that she would not seek to postpone the hearing once the SLAPP motion had been set by the court, and that the provisions of the original stipulated order remained in effect.
It is clear that the parties intended to delay filing their special motions to strike until the lower court decided the motion to seal. There was no agreement to extend the time to permit McMillan to file an amended complaint and further delay the time for the court to decide the special motions to strike. Accordingly, we conclude that the agreement between the parties was to postpone filing the special motions to strike until the court made its decision on the motion to seal, but no later than August 8, 2007, in the event that the court did not rule from the bench.
As already noted, the trial court denied McMillan’s motion to seal and for a protective order and notice of entry of this order was served on July 30, 2007. Thus, the special motions to strike filed by Plummer and Sargent on August 2, 2007, were not premature.
Accordingly, we reject McMillan’s claim that Sargent and Plummer filed their anti-SLAPP motions prematurely. Indeed, McMillan expressly agreed to take no action to delay the filing of the special motions to strike. The policy concerns stressed in both Simmons and Sylmar apply with equal force to the present case. We conclude that the lower court did not err in refusing to consider McMillan’s first amended complaint.
We note that this determination does not have any practical effect since McMillan’s original pleading and first amended complaint were essentially the same. Our independent review of the original and first amended complaints shows that, other than adding the causes of action for extortion and abuse of process, the only difference between these two pleadings was the addition of the following general allegation in the amended pleading: “Terry McMillan was coerced into signing the releases of Jonathan Plummer and Dolores Sargent because she feared that if she did not, defendants would continue to set forth false facts in legal proceedings and to the press and leak her private and sensitive information and communications to the press, thereby damaging her professional and personal reputation and endangering her and her son.” Under the extortion and abuse of process claims, McMillan reiterated the other allegations, requested damages of $10,000, and added one allegation under each cause of action. Under the extortion cause of action, McMillan asserted: “As a result of the foregoing acts, both defendants deliberately, maliciously and intentionally obtained monies from Terry McMillan, induced by a wrongful use of fear and threat, thereby constituting extortion.” She added the following allegation under her abuse of process claim: “As a result of the foregoing acts, both defendants, by attaching irrelevant, private, and sensitive information and communications relating to Terry McMillan to court filings in the divorce proceedings, deliberately, maliciously and intentionally used the court’s process for an improper and ulterior purpose for which the process was designed, thereby constituting abuse of process.”
B. Protected Activity
As already noted, the trial court granted Sargent’s special motion to strike all of McMillan’s causes of action against her. It granted Plummer’s motion to strike with respect to McMillan’s false light and invasion of privacy causes of action. McMillan does not mount a challenge to the court’s ruling on each cause of action. Instead, she argues that confidential telephone messages and letters she left and sent to Plummer and a demand letter written by Sargent were not protected speech. Although not expressly stated, presumably McMillan is arguing that all of her claims arose from these acts, which she claims were not protected speech.
In her pleading, McMillan sets forth other actions allegedly committed by Plummer and Sargent that were partially the basis for her lawsuit. She, however, does not discuss these actions in her argument on the first prong of the anti-SLAPP test. Thus, McMillan has waived or abandoned any other argument she might have raised regarding the court’s findings on the first prong of the anti-SLAPP test. (See, e.g., TME Enterprises, Inc. v. Norwest Corp. (2004) 124 Cal.App.4th 1021, 1038.)
McMillan argues that these telephone messages and letters were disclosed to the public because they had been attached to documents filed in the divorce proceeding and the proceeding on the stay-away order. She claims that these documents and Sargent’s demand letter were not protected speech because they were used for extortion, which can never be protected speech. Additionally, she claims that these documents did not involve an issue of public interest and that these documents were not protected by the litigation privilege. We consider each of these assertions.
1. McMillan’s Claim of Extortion
McMillan maintains that Sargent and Plummer attached her messages and letters to Plummer to documents filed in the divorce proceeding and the hearings on the stay-away order to extort money from her. She also claims that a demand letter sent by Sargent was extortion. As already noted, she argues that extortion can never be protected speech.
“Extortion is the obtaining of property from another, with his consent... induced by a wrongful use of force or fear....” (Pen. Code, § 518.) Fear, for purposes of extortion “may be induced by a threat, either: [¶]... [¶] 2. To accuse the individual threatened... of any crime; or, [¶] 3. To expose, or impute to him... any deformity, disgrace or crime[.]” (Pen. Code, § 519.) “Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat.” (Pen. Code, § 523.)
McMillan’s original pleading did not include a claim for extortion, but she did set forth a general allegation related to extortion in this pleading. In her original complaint, McMillan alleged the following: “Upon information and belief, the defendants conspired and formed a plan to threaten to humiliate and embarrass Terry McMillan, and violate her privacy and place her in harm’s way, and threatened to damage her professional and personal standing in an attempt to extort monies from her.”
At the hearing on the special motions to strike, McMillan argued to the trial court that a letter dated June 14, 2005, written by Sargent supported a claim of extortion. In this letter, Sargent, on behalf of her client Plummer, declined a settlement proposal from McMillan. Sargent wrote that Plummer wanted “a house in which to live somewhere acceptable to him” to settle the case. The letter closed with the following: “Most importantly, a settlement would end the ongoing acrimony and very public bitterness between the parties. We have undertaken efforts to keep the matter relatively private but I don’t anticipate it may remain private for the entire litigation. It seem[s] inevitable that someone will recognize Terry in the courtroom or hallway, some clerk will see her name on a pleading, some reporter will go through the filings and see it, or, in some other way, the matter will get public attention. Neither Jonathan nor I want that to happen, as it could negatively impact the sales of Terry’s new book, especially in light of the upcoming Ebony and Essence articles....”
At the hearing, counsel for McMillan also argued other facts, but when the court asked whether this argument was in the papers opposing the special motions to strike, counsel for McMillan admitted: “Your Honor, I understand that it’s not there.” The court properly discounted these arguments and focused exclusively on the letter of June 14, 2005. On appeal, we will not consider evidence not properly brought to the attention of the lower court. (See, e.g., Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1433-1434 [party challenging evidentiary ruling on appeal has burden of showing reversible error by developing an adequate evidentiary record in trial court].)
With regard to the claim of extortion, the trial court ruled that the complaint did not plead extortion. Additionally, it found that Sargent’s comments in the letter dated June 14, 2005, were not a threat because she did not express any intention to inflict harm on McMillan through a smear campaign.
McMillan complains that the lower court erred and she insists the facts of the present case are similar to those in Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley). The court in Flatley held 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.” (Flatley, supra, at p. 320.)
In Flatley, the court concluded that the evidence in the case before it supported extortion as a matter of law. (Flatley, supra, 39 Cal.4th at p. 320.) The attorney in Flatley represented a woman claiming that the defendant had raped her. In the attorney’s communications, he “threatened to ‘accuse’ [the defendant] of, or ‘impute to him,’ ‘crime[s]’ and ‘disgrace’... unless [the defendant paid the attorney for the plaintiff] a minimum of $1 million of which [the attorney] was to receive 40 percent.” (Id. at p. 330.) When concluding that the defendant’s speech in the case before it was not protected, the Supreme Court cautioned that it is a “rare case [ ] where the defendant’s assertedly protected speech or petitioning activity is conclusively demonstrated to have been illegal as a matter of law.” (Id. at p. 320, italics added.) The Supreme Court emphasized in Flatley that “our opinion should not be read to imply that rude, aggressive, or even belligerent prelitigation negotiations, whether verbal or written, that may include threats to file a lawsuit, report criminal behavior to authorities or publicize allegations of wrongdoing, necessarily constitute extortion.” (Id. at p. 332, fn. 16.)
We agree with the trial court that the evidence in this record does not establish extortion as a matter of law, and the present case is not one of those rare cases where the plaintiff has conclusively demonstrated that the protected speech was illegal as a matter of law (see Flatley, supra, 39 Cal.4th at p. 320). Firstly, as the trial court in the present case pointed out, Sargent did not threaten to go public with any information not already made public. When specifically asked what secret Sargent threatened to disclose that McMillan had not already revealed to the media, counsel for McMillan could not provide an answer. Secondly, Sargent did not threaten that if Plummer did not receive a specific amount of money, Plummer or she would reveal some secret information or some false crime.
McMillan argues that her expert witness Jerome Fishkin submitted a declaration stating that Sargent’s conduct was outside the scope of legitimate representation of her client, but the lower court excluded this declaration as improper expert witness testimony. In her brief in this court, McMillan simply claims that the “lower court erroneously refused to consider it” and then proceeds to argue the assertions made in this excluded declaration. McMillan’s simple assertion that the court “erroneously refused” to consider the declaration is inadequate and she has therefore waived any challenge to the court’s evidentiary ruling (see, e.g., Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649 [“the party asserting trial court error may not then rest on the bare assertion of error but must present argument and legal authority on each point raised”]). We therefore will not consider Fishkin’s declaration.
Finally, McMillan cites to a variety of messages and letters that she left or sent to Plummer, which Sargent and Plummer attached to documents filed in the divorce proceedings or they filed in connection with the stay-away orders. She claims that these documents were not necessary for these legal proceedings and were for the purpose of extortion. McMillan, however, fails to establish that Sargent had no legal basis for filing these documents or that these documents had no relevance to the divorce proceedings or the restraining orders. Indeed, McMillan’s arguments are so vague that they do not even approach establishing a claim of extortion as a matter of law. Moreover, as the lower court pointed out, the record in the divorce proceeding was not sealed and most of the information had already been disclosed by McMillan. Finally, McMillan provides no example, as the defendant in Flatley did, of a demand for money by Sargent or Plummer in exchange for not disclosing to the media false or other unrelated criminal acts by the defendant.
We conclude that McMillan’s assertion that her extortion claim could not be subject to First Amendment Protection under Flatley fails, because she cannot establish extortion as a matter of law.
2. Public Interest
McMillan contends that the telephone messages and letters released to the press by Sargent and Plummer could not be protected speech because they were purely personal communications and not concerned with any public interest. She asserts that simply because she is a public figure does not make these private communications an issue of public interest. (See Condit v. National Enquirer, Inc. (E.D. Cal. 2002) 248 F.Supp.2d 945, 954.) She claims that these communications to the media did not concern any topic of broad applicability. (See Mann v. Quality Old Time Service, Inc., supra, 120 Cal.App.4th at p. 111 (Mann).) Rather, she declares that the communications related only to McMillan’s views about one particular gay man.
It appears that these letters and messages were attached to documents filed in legal proceedings and the parties either released them or talked about them in the media.
To the extent that this federal court decision limits the definition of a public issue in a manner contrary to state appellate court decisions, we disagree with its definition. Furthermore, we note that we are not bound by lower federal court decisions. (People v. Avena, supra, 13 Cal.4th at p. 431.)
Under section 425.16, subdivision (e), Sargent and Plummer were required to establish that the telephone message and letters concerned “issue[s] of public interest.” Section 425.16 does not define “public interest,” but the court in Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1039 points out that the statute’s preamble states that its provisions “ ‘shall be construed broadly’ to safeguard ‘the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ ” After examining section 425.16, subdivision (e), and the cases interpreting this subdivision, the Nygard court concluded, “the issue need not be ‘significant’ to be protected by the anti-SLAPP statute––it is enough that it is one in which the public takes an interest.” (Nygard, supra, at p. 1042.)
The case cited by McMillan, Mann, supra, 120 Cal.App.4th 90, set forth the following three situations in which statements may concern a public issue or a matter of public interest under section 425.16, subdivision (e): “(1) the subject of the statement or activity precipitating the claim was a person or entity in the public eye; (2) the statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; or (3) the statement or activity precipitating the claim involved a topic of widespread public interest.” (Mann, supra, at p. 111.)
Here, McMillan, a famous author, was in the public eye. Additionally, her books and statements to the media generated widespread public interest in her private relationship with Plummer. Thus, the letters and communications between Plummer and McMillan were of public interest. McMillan acknowledges that she is a public figure, but she claims that her comments about her spouse and the problems with their marriage were private issues. McMillan complains that her comments were only about one gay man and not about gay people in general; she notes that “the focus of the anti-SLAPP statute must be on the specific nature of the speech rather than on generalities that might be abstracted from it” (Mann, supra, 120 Cal.App.4th at p. 111). Here, however, the public was interested in McMillan’s particular comments regarding Plummer because McMillan had helped spark public interest in her feelings and attitude towards Plummer when she wrote and publicized her book, How Stella Got Her Groove Back, which was a fictionalized version of the romance between Plummer and her. Further, this book was made into a movie, which generated even more interest in her relationship with Plummer.
Indeed, McMillan has acknowledged that she discussed her relationship with Plummer in the public arena. In her declaration, McMillan stated the following: “I must, however, briefly address the allegations [Plummer] makes about my reaction to his disclosure of his sexual orientation. When I learned that [Plummer] was gay in December 2004, I felt deceived, foolish and extremely hurt. It was devastating to discover that a relationship [that] I had publicized to the world as life-affirming and built on mutual love was actually based on deceit, lies, and obtained by fraud....” (Italics added.)
Thus, the trial court did not err in determining that the letters and messages revealing McMillan’s comments about Plummer’s being gay satisfied the public interest test of the anti-SLAPP test.
3. The Litigation Privilege
McMillan acknowledges that the telephone messages and letters were part of the filings in the divorce proceedings, but she claims that they were not covered by the litigation privilege because these documents lacked the requisite “connection or logical relation to the [divorce] action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) She claims that these documents were filed for the sole purpose of litigating the matter in front of the press.
Civil Code section 47, subdivision (b)(2) provides that “[a] privileged publication or broadcast is one made” in any “judicial proceeding.” The letters and messages at issue here were filed during the divorce proceeding. McMillan’s argument is somewhat unclear because the lower court did not actually address the litigation privilege when ruling on the first prong of the anti-SLAPP test. Rather, the trial court considered the litigation privilege defense when considering whether McMillan could prevail on her claims and thus satisfy the second prong of the anti-SLAPP test.
The issue raised by McMillan, however, does not depend upon the lower court’s expressly applying the litigation privilege. Her argument appears to be that the letters and messages were not connected to any legal proceeding and therefore they were not protected speech. It is undisputed that all of the documents at issue were attached to documents filed in the divorce proceeding or the proceeding to enforce the stay-away order, but McMillan argues that these communications “were entirely extraneous to any issue in the case and therefore did not serve to advance Plummer’s legal position in any way.” This conclusory statement fails to show how or why these communications were extraneous to the divorce proceeding. McMillan completely fails to set forth the exact communications that she claims were not connected to the legal proceedings; her inadequate argument makes review by this court almost impossible.
To the extent McMillan is contending that the documents disclosing her comments to Plummer about his being gay were irrelevant to the legal proceedings, we conclude that the record does not support this argument. McMillan admitted that she instituted divorce proceedings when she discovered that Plummer was gay. McMillan stated in court documents that the marriage was based on a fraud because Plummer lied about his sexual orientation and married her only to gain citizenship in the United States. Thus, comments or communications McMillan made to Plummer regarding his being gay were relevant to the divorce proceeding and to the enforcement of the stay-away orders issued in 2005. All of the telephone messages and letters made of record in the underlying proceeding were related to Sargent’s argument to the court that McMillan was harassing Plummer and violating the mutual stay-away order.
Accordingly, the lower court did not err in finding that the letters and messages filed in connection with the divorce proceeding and with the proceedings related to the stay-away order satisfied the first prong of the anti-SLAPP test.
C. The Second Prong of the Anti-SLAPP Test
The trial court granted Sargent’s motion to strike McMillan’s complaint pursuant to section 425.16 as to all of the causes of action against her, which included false light, invasion of privacy, and intentional infliction of emotional distress. The court also granted the motion as to McMillan’s claim that the release she signed should be voided. The court granted Plummer’s anti-SLAPP motion as to the false light and invasion of privacy causes of action. As already noted, to defeat the special motions to strike, McMillan had to demonstrate a probability of prevailing on the claim, which is established if she “presents evidence establishing a prima facie case which, if believed by the trier of fact, will result in a judgment for the plaintiff.” (Mattel, Inc. v. Luce, Forward, Hamilton & Scripps, supra, 99 Cal.App.4th at p. 1188.)
1. Sargent
The trial court found that McMillan could not show a probability of succeeding on her claims against Sargent, because any one of three defenses barred her claims. The three defenses were that McMillan’s claims were barred by the release signed by McMillan and Sargent, the litigation privilege, and the lack of evidence establishing malice. The court also found that the statute of limitations barred McMillan’s cause of action for violation of privacy. Since we conclude that the release barred McMillan’s claims, we need not consider the other defenses.
On October 4, 2005, McMillan signed a mutual general release that was between Sargent and her. The release provided the following: “McMillan hereby releases and discharges Sargent of and from any and all claims, demands, debts, liabilities, obligations, costs, expenses, damages, actions and causes of action, of whatsoever kind or nature, whether known or unknown, based upon, arising out of, or connected directly or indirectly with the McMillan/Plummer Dissolution.” The release further stated: “McMillan agrees that she had an opportunity to obtain independent counsel of her choice to review this Mutual General Release. She is signing this Release of her own free will, free from coercion and not under duress.” The release also contained a Civil Code section 1542 waiver.
The release signed by McMillan is a full release of all claims in connection with her legal representation of Plummer in the divorce proceeding with McMillan. The abovementioned provision is clear and not ambiguous. “A valid release conclusively estops the parties from reviving and relitigating the claim released.” (Faye v. Feldman (1954) 128 Cal.App.2d 319, 328.) A written release generally extinguishes any obligation covered by its terms, provided it has not been obtained by fraud, deception, misrepresentation, duress or undue influence. (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1366.) Evidence of the circumstances establishing whether a written release was obtained through illegality or fraud is admissible for this purpose. (§ 1856, subd. (g).)
All of McMillan’s claims against Sargent are connected to Sargent’s legal representation of Plummer in the earlier divorce proceeding. McMillan had counsel and the release contained a provision stating that she did not sign it under duress. McMillan does not contest that her claims against Sargent fall within the scope of the release language, but she claims that she did not freely consent because of duress.
Civil Code section 1567, subdivision (1) provides that an apparent consent to an agreement is not real when obtained through duress. Duress generally exists whenever one is induced by the unlawful act of another to make a contract or perform some other act under circumstances that deprive him or her of the exercise of free will. (Lewis v. Fahn (1952) 113 Cal.App.2d 95, 98.) McMillan does not assert economic duress and courts have uniformly held that a claim of duress, when not based on economic duress, requires a showing that “ ‘the defendant intentionally exerted an unlawful pressure on the injured party to deprive him of contractual volition and induce him to act to his own detriment.’ ” (Louisville Title Ins. Co. v. Surety Title & Guar. Co. (1976) 60 Cal.App.3d 781, 802, italics added; see also Goldstein v. Enoch (1967) 248 Cal.App.2d 891, 894-895.)
To show a probability of prevailing on her claims, McMillan has to produce some evidence that Sargent acted unlawfully. McMillan asserts that Sargent acted unlawfully by engaging in extortion. Under this second prong of the anti-SLAPP statute, McMillan’s burden of proof is minimal; she only needs to present some evidence of extortion. However, she cannot rely on unsubstantiated allegations to defeat the anti-SLAPP motion; rather, she must proffer some credible evidence in support of the claim. (ComputerXPress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1010.)
As already noted, “Extortion is the obtaining of property from another, with his consent... induced by a wrongful use of force or fear....” (Pen. Code, § 518.) Fear, for purposes of extortion “may be induced by a threat, either: [¶]... [¶] 2. To accuse the individual threatened... of any crime; or, [¶] 3. To expose, or impute to him... any deformity, disgrace or crime[.]” (Pen. Code, § 519.)
McMillan has failed to present any credible evidence in support of her claim of extortion. She has not provided any evidence that connects any threat by Sargent with a demand for money. Further, as the lower court noted, the family court records had not been sealed and all of the information had already been made public. When the court specifically asked counsel for McMillan what secret Sargent threatened to disclose that McMillan had not already revealed to the media, counsel for McMillan could not provide an answer.
Accordingly, we conclude that McMillan failed to provide any credible evidence to support her claim of duress and therefore the release, which bars all of McMillan’s claims against Sargent, is enforceable. Thus, McMillan cannot show a probability of prevailing on any of her claims against Sargent, and the trial court properly granted Sargent’s special motion to strike all of McMillan’s claims against her.
2. Plummer
The court granted Plummer’s anti-SLAPP motion as to the false light and invasion of privacy causes of action based on a finding that the release provisions, the litigation privilege, and the statute of limitations barred these claims. Again, we conclude that the release barred these two claims by McMillan and we therefore need not consider the additional defenses of the litigation privilege and the statute of limitations.
McMillan and Plummer ended their marriage on October 4, 2005, by a stipulated further judgment. Paragraph 13 of the stipulated judgment contained a variety of provisions under the heading of “Releases.” Paragraph 13.1 reads in relevant part: “The court finds that petitioner and respondent agree that by this Further Judgment, he/she intends to settle all aspects of his/her marital rights. Each of the parties shall also release the other and the other’s heirs, representatives, successors and assigns of and from any and all other claims, demands, costs, expenses, liabilities, actions and causes of action based on, arising out of, or in connection with any matter, fact, or theory occurring prior to the execution of this Further Judgment. The court finds that each of the parties agrees and understands that there is a risk that subsequent to the execution of this Further Judgment either of them may incur or suffer loss, damage or injuries which are in some way caused by, or related to, the matters released in this section, which are unknown or unanticipated at the time this Further Judgment is executed. The court finds that each party hereby assumes said risk and agrees to hold the other party harmless therefrom.” The release also contained a Civil Code section 1542 waiver.
The release provision contained in the settlement agreement signed by Plummer and McMillan and both of their attorneys is clear and not ambiguous. Rather than argue that the release does not cover the invasion of privacy or false light claim against Plummer, McMillan asserts that she signed this release under duress. To support this claim she provides the same argument she mounted in her attempt to void the release she signed involving Sargent. She again fails to present any credible evidence to support a claim of extortion. Thus, for the same reasons that we rejected McMillan’s argument that she signed the release involving Sargent out of duress, we reject her unsubstantiated charge of duress as it relates to the release provision in her settlement agreement with Plummer.
We note that McMillan does not attempt to void the entire settlement agreement but limits her attack to the release provision in the settlement agreement.
The release provision in her settlement agreement with Plummer bars McMillan’s claims of false light and invasion of privacy against Plummer; McMillan therefore cannot establish a probability of prevailing on these claims. Accordingly, the trial court properly granted Plummer’s special motion to strike these two claims.
D. Attorney Fees and Costs
McMillan argues that “Sargent and Plummer’s anti-SLAPP motions, like their challenge to McMillan’s ironclad premarital agreement, provided a textbook example of a ‘frivolous’ litigation tactic, in that those filings were ‘totally and completely without merit’ and were brought ‘for the sole purpose of harassing’ McMillan.” Thus, McMillan requests costs and attorney fees. We have concluded that Sargent and Plummer’s anti-SLAPP motions had merit and we are affirming the lower court’s judgment. Accordingly, McMillan is not entitled to her costs and attorney fees under section 425.16, subdivision (c). Since McMillan has not prevailed on any issue raised by her appeal, she must pay the costs of her appeal.
DISPOSITION
The judgment is affirmed. McMillan is entitled to the costs of Plummer’s appeal. McMillan is to pay the costs of her appeal.
We concur: Kline, P.J., Richman, J.