By Garrett C. Dailey, Family Lawyer
FACTS: P sued his ex-wife (D) for libel as a limited jurisdiction matter, alleging she maliciously made false statements about him in a declaration she filed in their divorce. Trial ct. granted D’s special motion to strike under Code of Civil Procedure section 425.16, on the ground that it was based on statements protected by the litigation privilege in Civil Code section §47(b). P moved for reconsideration, and D moved for attorney fees as the prevailing D on an anti-SLAPP motion. Court denied reconsideration, vacated its order granting the special motion to strike, sua sponte elected to treat the special motion to strike as a demurrer, sustained the demurrer without leave to amend and directed that the motion for attorney fees under the anti-SLAPP statute was moot.
P appealed to the app.div. super. court, which construed the appeal from the order sustaining a demurrer without leave to amend as an appeal from an order of dismissal. App.div. reversed the dismissal, concluding the exception to the litigation privilege in Civil Code section 47(b)(1), for an allegation in an affidavit filed in a marital dissolution proceeding, potentially applied because P alleged D made the statements about him with malice.
Court of Appeal granted D’s petition to transfer the cause to the appellate court per California Rules of Court, rule 8.1002 and California Rules of Court, rule 8.1008, then reversed.
HELD: Civil Code section 47(b)(1) exception to litigation privilege applies only to statements made in disso. proceeding by or against 3d party, not where statements are made against a party.
D’s statements, “whether true or false or made with malice or without, in her declaration filed in the marital dissolution proceedings, on which [plaintiff] bases his defamation cause of action against her, fall squarely within the litigation privilege. They are communications made in a judicial proceeding by a litigant to achieve the objects of the litigation with some connection to the action.” (Holland v. Jones, supra, 210 Cal.App.4th at p. 382.)
The exception on which the appellate division relied “simply does not apply” to D’s statements. That exception may under certain circumstances apply to statements in an affidavit filed in a marital dissolution proceeding when they are “made of or concerning a person by or against whom no affirmative relief is prayed in the action . . . .” (CC §47(b)(1).) D made the statements about P, who is not a person against whom no affirmative relief is prayed in the action.
As P presented no basis on which he could amend his complaint to avoid the litigation privilege, trial ct. properly sustained a demurrer to his complaint without leave to amend.
Garrett C. Dailey is a Certified Family Law Specialist focusing on appellate issues and consultations, a Fellow in American Academy of Matrimonial Lawyers and publisher/co-author of ATTORNEY’S BRIEFCASE® CALIFORNIA FAMILY LAW, California’s oldest provider of self-contained legal research software. BriefCase is available online and through the Attorney’s BriefCase iPad® app. For more information visit them at www.atybriefcase.com. Also check out their FREE legal education log at www.MyLegalEducationLog.com.