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August 13, 2007

Rohde v. Wolf (2007) 154 Cal.App.4th 28

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The Second District holds that pre-litigation conduct is petitioning conduct protected by the anti-SLAPP statute.

When Peter Metsos died and his children disputed the distribution of their father’s assets Michael Wolfe represented the son, George Metsos.  Daughter Sophia Rohde’s attorney commented that it appeared the matter would have to be litigated.  George and Sophia agreed to sell some real property and equally divide the proceeds.  They chose a listing agent, agreed to keep each other informed, and not proceed absent mutual consent.    

Wolfe advised the listing agent that he was to be included in all communications regarding the listing and sale of the property, and asked the agent to prepare a listing agreement for review by both counsel.  Later, in response to Wolfe’s inquiry, the agent indicated that he had sent the agreement and buyer’s proposal to Rohde’s attorney, and that Rohde specifically instructed him not to send these documents to Wolfe.   

Wolfe demanded the documents from the listing agent, accused him of conspiring with Rohde, and threatened action.   

Rohde filed an action against her brother, accusing him of interfering with the sale of the real property.  Shortly thereafter she filed an action against Wolfe for slander.  The trial court denied Wolfe’s anti-SLAPP motion.   

 The Court of Appeal set forth the two-step analysis of the anti-SLAPP statute.  First, the court decides whether the defendant has demonstrated that the challenged cause of action is one arising from protected activity.  Once that threshold has been crossed the court evaluates whether the plaintiff has demonstrated a probability of prevailing on the claim.

A protected activity includes an act in furtherance of the right of petition.  It includes statements or writings made in connection with an issue under consideration or review by a judicial body.  Statements, writings and pleadings in connection with civil litigation are not required to be matters of public interest to receive anti-SLAPP protection because the statute protects the rights of litigants to freedom of access to the courts. 

Communications preparatory to or in anticipation of litigation that are protected by the litigation privilege of Civil Code § 47 (b) are also entitled to the protection of the anti-SLAPP statute.  The privilege arises when litigation is no longer a mere possibility, but has ripened into a proceeding that is contemplated in good faith as a means of obtaining access to the courts for the purpose of resolving the dispute.  However, the litigation need not be imminent.   

Wolfe represented Metsos in an ongoing dispute with Rohde concerning the distribution of the estate.  Rohde’s attorney threatened to file a lawsuit on her behalf against her brother.  During the attempted sale and distribution of the real property Rohde instructed the listing agent to exclude Wolfe from the distribution of documents relevant to the sale.  In support of the motion, Wolfe stated that if the exclusion continued, he would have filed an action to protect his client’s interests.  The specter of litigation loomed over all communications between the parties at that time and was protected activity.   

Wolfe met the second prong because Civil Code § 47, the codified litigation privilege, applied to the communications.  Pre-litigation statements made in connection with proposed litigation that is contemplated in good faith and under serious consideration are protected.  Section 47 is broadly construed to protect a litigant’s right to access to the courts without fearing subsequent, harassing derivative tort actions.  It is an absolute privilege and bars all tort causes of action except a claim of malicious prosecution. 

Comment:  Courts will frequently employ the anti-SLAPP statute to dismiss claims against attorneys by non-clients.   

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