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September 28, 2011 | Law Alert

Lefebvre v. Lefebvre (2011) 199 Cal.App. 4th 696

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The Second District holds that a false police report is not constitutionally protected conduct for purposes of analysis under California’s anti- Strategic Lawsuit Against Public Participation Statute, despite the fact that it is potentially protected by the litigation privilege.

In the midst of divorce proceedings Alice Lefebvre falsely reported to law enforcement that her estranged husband Jon Lefebvre had threatened to kill her and their children; Nancy Toothman confirmed Alice’s criminal report.  Jon was charged with a crime but exonerated by the jury, who made a statement to the effect that the lack of investigation by law enforcement was shocking and that Jon deserved restitution against the parties involved.

Jon filed an action against Alice and Toothman alleging they conspired to bring a false criminal report against him and made false statements to law enforcement that were repeated at trial  Alice and Toothman filed a joint special motion to strike under California’s anti-Strategic Lawsuit Against Public Participation Statute (anit-SLAPP) C.C. P. § 425.16, which was denied.  .

The anti-SLAPP statute provides a procedure for striking meritless, chilling causes of action at the earliest possible stages of litigation. In the first step of a two-step analysis the trial court determines if the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity that is in furtherance of the defendant’s right of petition or free speech under the federal or state Constitutions. The defendant must establish that the plaintiff’s cause of action is actually based on conduct in the exercise of those rights.

If the claims implicate constitutional rights the court then determines whether the plaintiff has demonstrated a reasonable probability of prevailing which requires more than a preponderance of the evidence. The court applies a “summary-judgment-like” test accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff’s evidence as a matter of law.  A court may not weigh credibility or compare the weight of the evidence. An order denying an anti-SLAPP motion is reviewed by the Court of Appeal de novo.

Although Alice’s false criminal report to the police was absolutely privileged under C.C. § 47(b) this is not the equivalent of “protected activity” under the anti-SLAPP statute.  The conduct underpinning a plaintiff’s cause of action must implicate the right of petition or free speech in connection with a public issue.  A false police report is not an act in furtherance of constitutional rights and the anti-SLAPP statute does not apply.  The question of whether privilege immunizes Alice is a separate issue from whether she was exercising constitutional rights.

The California Supreme court has explained that there is a relationship between the litigation privilege and the anti-SLAPP statute.  However the scope of the protections afforded under the two statutes is not identical in every respect and are “not substantively the same.  The litigation privilege is an entirely different type of statute than the anti-SLAPP statute.  The litigation privilege enshrines a substantive rule of law that grants absolute immunity from tort liability for communications made in relation to judicial proceeding.  The anti-SLAPP statute is a procedural device for screening out meritless claims.

The two statutes do not serve the same purposes.  The litigation privilege guarantees access to the judicial process and promotes zealous representation by counsel, and reinforces the traditional function of the trial as the engine for the determination of truth. Application of the litigation privilege can lead to unfair results, such as the protection of illegal conduct.  However this is tolerated given the goals of the privilege to provide access to the judicial process.

The anti-SLAPP statute is not concerned with access to the judicial process; its purpose is to protect the valid exercise of constitutional rights of free speech and petition from the abuse of the judicial process.  The anti-SLAPP statute does not protect activity that, because it is illegal, is not in furtherance of constitutionally protected speech or petition rights. The purpose of the litigation privilege is not transferable to the anti-SLAPP statute because the latter statute does not promote the same goals as the former.

The statutory privilege of C.C. § 47 is specific and limited in nature. For example statements that may be partially protected because they were made during settlement negotiations do not preclude the use of those statements as evidence of the party’s intent to establish an abuse of process claim.

The Court noted that Alice conceded that the criminal report was false.  As such, it was not protected activity.  While Alice may assert the defense of privilege in another procedural setting, it was irrelevant to consideration of the anti-SLAPP motion.

Comment: Attorneys often invoke the anti-SLAPP statute to dispose of claims by third parties at an early stage of the proceedings. While the litigation privilege is often applied in the second part of the two part anti-SLAPP analysis to show the plaintiff has no reasonable probability of prevailing, this case illustrates that conduct protected by the litigation privilege does not automatically garner the protection of the anti-SLAPP statute as well.

Practice Area: Lawyers & Judges Defense Group
Attorney: Jennifer A. Becker

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