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June 28, 2013

Trapp v. Naiman 2013 WL3845346

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The Fourth District holds an attorney is entitled to dismissal under the anti-SLAPP statute where conduct is covered by the absolute litigation privilege.   

Bennie G. Trapp, Sr., owned a home and his lender initiated non-judicial foreclosure.  Attorney Randall D. Naiman filed and dismissed several unlawful detainer actions against Trapp’s son, who was residing in the house.  The Trapps filed a complaint against the lenders and Naiman.  The trial court granted Naiman’s anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) motion as to causes of action for negligence and abuse of process, but denied it as to claims for quiet title, wrongful foreclosure, breach of duty of good faith and fair dealing, and unfair business practices.  The Court of Appeal held the trial court should have dismissed all causes of action against Naiman. 

The anti-SLAPP statute establishes a two-step procedure.  First, the defendant establishes the cause of action arises from protected activity in furtherance of the constitutional right of petition or free speech.  Protected activity includes communicative conduct such as the filing, funding, and prosecution of a civil action.  The absolute litigation privilege of Civil Code § 47 (b), for “judicial” or “official” communications helps define the meaning of protected activity.  If the defendant establishes the conduct is protected, the burden shifts to the plaintiff to demonstrate a reasonable probability of prevailing in the action.  The plaintiff must show 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. 

Although the Trapps claimed Naiman filed the unlawful detainer actions to harass and bully them, the inquiry does not involve the subjective intent of the defendant engaging in protected activity.  The filing of the unlawful detainer actions was clearly protected activity. 

The Court rejected the argument the case was premised on the non-judicial foreclosure, which precedent establishes is not protected activity.  Naiman did not participate in the non-judicial foreclosure, and the Trapps could not bootstrap those claims to encompass the protected litigation activity.  A fair reading of the complaint revealed Naiman’s only conduct involved the unlawful detainer.  Despite other causes of action directed at the non-judicial foreclosure, where causes of action allege both protected and unprotected activity, all the causes of action must be stricken. 

Plaintiffs could not prove a probability of prevailing because the absolute litigation privilege barred all claims.  The privilege applies to any communication made in judicial or quasi-judicial proceedings; by litigants or other participants authorized by law; to achieve the objects of the litigation; and that have some connection or logical relation to the action.  It may extend to communicative conduct taken before or after a trial or other proceeding.  .  The privilege affords litigants and witnesses free access to the courts, without fear of derivative tort actions.  It encourages open channels of communication and zealous advocacy, promotes complete and truthful testimony, gives finality to judgments, and avoids unending litigation. 

Comment: The anti-SLAPP statute continues to provide robust protection for attorneys against third-party claims.

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