Defamation: Anti-SLAPP Motions, Mixed Causes of Action and the Litigation Privilege in Los Angeles and San Diego

Last month a Los Angeles Court of Appeals decided a libel case involving mixed causes of action, i.e., claims including legally protected and unprotected statements or activity, in framework of the litigation privilege.1

The defendant-cross-complainant-respondent (Kettler) is a financial planner and advisor who assisted plaintiffs elderly parents for 20 years. Shortly after their deaths, the plaintiff daughter sued for misappropriation of her parents’ funds, and asserted Kettler intentionally deceived them to obtain their financial power of attorney. The plaintiff also filed complaints with the California Department of Insurance; the Certified Financial Planner Board of Standards, Inc. (“CFP Board”); The Financial Industry Regulatory Authority (“FINRA”); Anthem Blue Cross; and the defendant’s employer, AXA Advisory, LLC, through its dedicated fraud reporting site.

The defendant cross-complained. He sought damages for defamation and an injunction preventing the Plaintiff/Cross-Defendant from continuing her “wrongful conduct.”

The cross-defendant filed an anti-SLAPP motion. She argued her pre-litigation complaints to the agencies above were protected by the litigation privilege. However, because some of her pre­ litigation complaints to agencies were privileged while some were not, the court first addressed

the “mixed” causes of action. ” … [Particular alleged acts giving rise to a claim for relief may be the object of an anti-SLAPP motion. Thus, in cases involving allegations of both protected [privileged] and unprotected activity, the plaintiff is required to establish a probability of prevailing on any claim for relief based on allegations of protected activity.”

California Civil Code§ 47(b) embraces testimony in court and statements in pleadings. It also encompasses statements made before a court action is filed. The law provides a pre-litigation statement made (1) in good faith preparation for anticipated litigation, or (2) to investigate the feasibility of suing, is shielded by section 47(b)–but only when ” .. .it relates to litigation that is contemplated in good faith and under serious consideration.” (Citations omitted)

Citing cases, the Los Angeles appellate court held the party’s access to the courts must be (a) imminent and (b) seriously proposed by the client authorizing a prelitigation communication such as a cease and desist demand letter.

In Kettler, the plaintiff/cross-defendant periodically contacted AXA, the defendant/cross­ complainant/respondent’s employer, using the employer’s “fraud” website. Plaintiff lodged her first complaint there on August 25, 2013, her second five and one-half months later, February 10, 2014, and her third on July 22, 2014 – 11 months after the first email to the site, five months after the second. In none of the complaints about Kettler to his company did she indicate she intended to sue AXA. The superior court disagreed with the plaintiffs contention her complaints to defendant’s employer were privileged by §47(b). That lower court further rejected the assertion the earlier communications to AXA were the same as those that appeared in the later civil action 2 reported last month.

The Kettler court agreed. The panel first noted none of the emails to AXA contained any suggestion cross-defendants were contemplating a suit against AXA. Next, none of plaintiff/cross-defendant’s sworn statements supporting her anti-SLAPP motion contained evidence the AXA emails between August 2013 and February 2014 were submitted in pursuit of, or logically related to, furtherance of an imminent lawsuit. The justices decided the communications to AXA were “entirely extraneous to the action” and the contemplated litigation was more a “bare possibility” than a genuine and imminent plan.

Kettler provides useful guidance to counsel advising prospective litigants contemplating a defamation claim. Attorneys and parties are well advised to review it when bringing libel and slander cases.

1.See Kettler v. Gould, 4/20/18, B282160 (Los Angeles County Superior Court No. LC 101909)

2.There was an earlier probate action between the parties unimportant to this discussion.