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June 10, 2010

G.R. v. Intelligator (2010) 185 Cal.App.4th 606

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The Fourth District holds that an attorney was protected by the anti-SLAPP statute from a claim by an adverse party, even when the attorney admittedly failed to follow a court rule protecting personal information

Irene Intelligator represented G.R.’s wife in marital dissolution proceedings.  Intelligator filed a motion attaching un-redacted copies of credit reports disclosing certain personal identifying information.

G.R. filed a complaint against Intelligator, alleging statutory and common law privacy claims, and asserting Intelligator violated Rules of Court.  Intelligator prevailed on a motion under Code of Civil Procedure § 425.16, California’s anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute.  The Court of Appeal affirmed.

The anti-SLAPP statute applies to a cause of action arising from any act in furtherance of the right of petition or free speech under the United States or California Constitution in connection with a public issue.  The court engages in a two-step process.  First it determines whether the defendant has demonstrated that the challenged cause of action is one arising from protected activity.  If so, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim.  The plaintiff must show the complaint is both legally sufficient and is supported by a prima facie showing of facts sufficient to sustain a favorable judgment.

Intelligator’s filing of the credit report fell squarely within the statute.  All communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding are petitioning activity protected by the anti-SLAPP statute.

Intelligator’s concession that she violated the Rules of Court did not alter the analysis.  Conduct that is illegal as a matter of law, such as an extortionate communication couched as a settlement demand, is not protected conduct.  However, this is a narrow exclusion, and did not apply to Intelligator’s failure to redact the personal identifiers as required by the Rules of Court.

Husband could have sought sanctions against Intelligator for the Rule violation in the ongoing post-dissolution proceedings; a separate lawsuit was unnecessary.  It would chill the right to petition if an attorney were subject to a separate action for every violation of a court rule.

Turning to the second prong, Husband failed to show a probability of success on the merits because the litigation privilege barred the claims.  The litigation privilege affords litigants and witnesses freedom of access to the courts without fear of derivate tort actions.  It promotes effective judicial proceedings by encouraging open channels of communication and the presentation of evidence, and encourages attorneys to zealously protect their clients’ interests.  It enhances the finality of judgments and avoids an unending roundelay of litigation.  The privilege is absolute, and bars all tort causes of action except a claim of malicious prosecution.

The Court acknowledged that the litigation privilege does not apply in circumstances where a statute is more specific than the privilege and would be rendered significantly or wholly inoperable if the privilege applied.  However, this analysis did not apply to the Rule of Court Intelligator violated.  The Rule was not rendered inoperable by the litigation privilege because
an affected party can file a motion for sanctions or other redress in the pending proceedings, or report the attorney to the State Bar.

Comment: The anti-SLAPP statute continues to be strong protection for attorneys against claims by non-clients, even when the attorney concedes that certain errors were made.


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