The opinion
Filed 4/29/26 Doe v. City of Los Angeles CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JANE DOES et al., B343986
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 23STCV21284)
v.
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, David S. Cunningham, III, Judge. Affirmed.
Kellner Law Group, Richard L. Kellner; McNicholas &
McNicholas, Matthew S. McNicholas and Douglas D. Winter for
Plaintiffs and Appellants.
Hydee Feldstein Soto, City Attorney, Denise C. Mills, Chief
Deputy City Attorney, Kathleen A. Kenealy, Chief Assistant City
Attorney, Shaun Dabby Jacobs, Assistant City Attorney, Michael
Walsh, Deputy City Attorney, for Defendant and Respondent.
____________________
Plaintiffs are current and former undercover Los Angeles
Police Department (LAPD) officers. They brought these related
actions against LAPD, the City of Los Angeles (City), Lizabeth
Rhodes, Brian Taft, Michel Moore, Michael Feuer, and Hasmik
Badalian Collins after the City produced photographs of
undercover officers to Ben Camacho in order to settle his lawsuit
pursuant to the California Public Records Act (CPRA; Gov. Code,
§ 7920.000 et seq.).
Plaintiffs appeal the trial court’s order granting the City’s
special motion to strike all their claims under the anti-SLAPP
(strategic lawsuit against public participation) statute. (Code Civ.
Proc., § 425.16; undesignated statutory references are to this
code.) We affirm.
FACTUAL BACKGROUND
Because this appeal arises from an order granting an anti-
SLAPP motion, we base this background upon “ ‘the pleadings,
and supporting and opposing affidavits . . . upon which the
liability or defense is based.’ ” (Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup), quoting § 425.16,
subd. (b)(2).)
In October 2021, Camacho filed a CPRA request with
LAPD for a roster and headshot photographs of all LAPD officers.
In January 2022, LAPD agreed to provide only the roster in
response, taking the position the photographs were exempt from
disclosure pursuant to Government Code former section 6255. In
May 2022, Camacho filed a petition for writ of mandate against
the City to compel production of the photographs. (Ben Camacho
v. City of Los Angeles (Super Ct. Los Angeles County,
No. 22STCP02029).)
2
Camacho and the City ultimately reached an agreement to
settle the writ proceeding in September 2022. The City agreed to
produce photographs of “active-duty officers as of July 2022,
except for active-duty undercover officers.” However, the City
actually produced to Camacho “a flash drive with headshots of all
active-duty police officers as of July 3, 2022, except for a small
group of specific officers who had an undercover assignment with
a 650 designation.” According to an exhibit attached to one of
Plaintiffs’ operative complaints, the City’s production of
photographs of officers working in an undercover capacity was
“inadvertent[].” One of Plaintiffs’ operative complaints alleges the
production was “reckless[].”
In the letter accompanying the document production, the
City stated the “production fulfills the CPRA request at issue in
the writ,” and “all that remains after your client’s review of the
production is the issue of Attorney’s fees and a full settlement of
the action.”
In November 2022, Camacho and the City “entered into a
settlement agreement regarding the attorneys’ fees to be paid to
Camacho,” which noted the City “acted in good faith . . . to
produce available, responsive, non-exempt records.”
The following month, Stop LAPD Spying Coalition (SLSC)
filed a CPRA request for a roster of current LAPD officers with
each officer’s “name, serial number, ethnicity, gender, area, rank,
year of hire, weight, and height.” The City provided some of the
requested information in January 2023, but not the officers’
heights and weights.
On March 16, 2023, the police officers’ union, the Los
Angeles Police Protective League, learned from a reporter that
officer photographs, names, and serial numbers would be posted
3
to a publicly available website the next day. On March 17, 2023,
SLSC launched a website with a searchable database allowing
users to search for any LAPD officer, including undercover
officers, by either the name or serial number. A query returned
the officer’s photograph, e-mail, ethnicity, gender, division, rank,
year of hire, and salary information. The following day, the LAPD
Chief Moore e-mailed an apology to all LAPD personnel,
acknowledging “appropriate safeguards were not put in place” to
protect officers “assigned to sensitive investigations,” and
promising an investigation of the information release.
In March and April 2023, the City demanded Camacho and
SLSC return the wrongly produced photographs. When Camacho
and SLSC did not do so, the City filed suit against them in April
2023 (No. 23STCP01060) to recover the photographs. According
to the City, the suit settled without the photographs’ return.
PROCEDURAL HISTORY
Two hundred current and former undercover officers filed
suit as Jane Does and John Does on September 5, 2023, against
the City and other defendants, arising from the disclosure of their
information and photographs (No. 23STCV21284). A similar
complaint was filed on behalf of 703 John Doe plaintiffs on
September 12, 2023 (No. 23STCV21995). The trial court ordered
the cases related in October 2023.1
According to Plaintiffs, their operative “complaints allege
causes of action for negligence, invasion of privacy, public
disclosure of private facts, negligent infliction of emotional
1 A third similar complaint was filed by approximately
six Doe plaintiffs on December 1, 2023, (No. 23STCV29551), and
was related to the two existing actions. That third action is not
before us in this appeal.
4
distress, breach of contract, and legal malpractice.”2 The City was
a defendant in both actions, along with various LAPD officials
and individuals from the City Attorney’s Office.3
In January 2024, the City and other defendants filed an
anti-SLAPP motion. They argued all of Plaintiffs’ claims arose
from their protected litigation activity in settling the Camacho
lawsuit, and Plaintiffs could not show a likelihood of success on
any one. The motion argued most causes of action were barred by
the litigation privilege, and Plaintiffs could not bring a legal
malpractice cause of action because they had no attorney-client
relationship with any defendant. Plaintiffs argued because the
City produced photographs it had not intended to include, the
production was not protected activity, the litigation privilege did
not bar Plaintiffs’ claims, and the legal malpractice cause of
action was valid because of the City Attorney’s Office’s past
conduct. The trial court requested supplemental briefing from the
parties regarding “whether the [Plaintiffs] have a private right of
action under Penal Code section 832.7.”
The trial court ultimately granted defendants’ anti-SLAPP
motion. It determined defendants had carried their burden to
show Plaintiffs’ claims arose from their protected activity, as
2 The first amended complaint in No. 23STCV21284 included
two additional causes of action. Because Plaintiffs do not mention
those causes of action in this appeal, we do not consider them
further. (See Pfeifer v. Countrywide Home Loans, Inc. (2012)
211 Cal.App.4th 1250, 1282 (Pfeifer).)
3 Because Plaintiffs’ opening brief appeals only the order
granting the City’s anti-SLAPP motion, we need not and do not
consider the order as it relates to other defendants. (See Pfeifer,
supra, 211 Cal.App.4th at p. 1282.)
5
required by the first part of the anti-SLAPP statute. The court
further determined Plaintiffs had not shown a likelihood of
prevailing on their claims. The litigation privilege of Civil Code
section 47, subdivision (b) barred Plaintiffs’ causes of action for
negligence, invasion of privacy, public disclosure of private facts,
negligent infliction of emotional distress, and breach of contract.
Their legal malpractice cause of action also failed because
Plaintiffs had not shown a direct or implied attorney-client
relationship with any defendant. Finally, the court determined
the Plaintiffs had no private right of action for damages under
Penal Code section 832.7.
Plaintiffs timely appealed. (See Cal. Rules of Court,
rule 8.104(a)(1)(A), (e); see also §§ 425.16, subd. (i), 904.1,
subd. (a)(13).)
DISCUSSION
I. Overview of Anti-SLAPP Principles
“We review de novo the grant or denial of an anti-SLAPP
motion.” (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1067.) The anti-SLAPP statute “provides a
procedure for weeding out, at an early stage, meritless claims
arising from protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th
376, 384 (Baral); see also § 425.16, subd. (b)(1).) A court’s
analysis of an anti-SLAPP motion proceeds in two steps. (Baral,
at p. 384.)
“First, the defendant must establish that the challenged
claim arises from activity protected by section 425.16.” (Baral,
supra, 1 Cal.5th at p. 384.)
Second, if the defendant succeeds, “the burden shifts to the
plaintiff to demonstrate the merit of the claim by establishing a
probability of success.” (Baral, supra, 1 Cal.5th at p. 384; see also
6
Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th
53, 61.) The court undertakes “a ‘summary-judgment-like
procedure’ ” in which “[i]ts inquiry is limited to whether the
plaintiff has stated a legally sufficient claim and made a prima
facie factual showing sufficient to sustain a favorable judgment.”
(Baral, at pp. 384–385.) “ ‘[W]e neither “weigh credibility, [nor]
compare the weight of the evidence. Rather, [we] accept as true
the evidence favorable to the plaintiff [citation] and evaluate the
defendant’s evidence only to determine if it has defeated that
submitted by the plaintiff as a matter of law.” ’ ” (Oasis West
Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) Any
“ ‘conflicts and inferences in the record [are resolved] in favor of
plaintiff,’ ” but “speculative inferences . . . need not be
considered.” (Monster Energy Co. v. Schechter (2019) 7 Cal.5th
781, 795.)
II. Plaintiffs’ Claims Arose from the City’s Protected
Activity
It is the defendant’s burden to make “a threshold showing
that the challenged cause of action arises from protected
activity.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; see
also Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) In order to do
so, the City must “show[] that the acts underlying the plaintiff’s
cause of action fall within one of the four categories of conduct
described in section 425.16, subdivision (e).” (Nygard, Inc. v.
Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1036.)
A. The City Produced the Photographs in
Connection with Litigation
The trial court concluded the City released the photographs
in connection with settling the Camacho writ, and thus it
“qualifie[d] as ‘protected activity’ under [the] anti-SLAPP
7
statute.” Plaintiffs’ opening brief does not challenge that their
causes of action arise from the City’s production of their
photographs in connection with litigation. We agree the
production was protected under section 425.16, subdivision (e)(2).
“ ‘[A] statement is “in connection with” litigation under
section 425.16, subdivision (e)(2), if it relates to the substantive
issues in the litigation and is directed to persons having some
interest in the litigation.’ ” (Seltzer v. Barnes (2010)
182 Cal.App.4th 953, 962 (Seltzer).) “Statements and writings
made in connection with litigation are therefore covered by the
anti-SLAPP statute,” regardless of whether “the litigated matter
concerns a matter of public interest.” (GeneThera, Inc. v. Troy &
Gould Professional Corp. (2009) 171 Cal.App.4th 901, 907
(GeneThera).) It is well established that statements made in
connection with litigation settlements are protected activity. (See
id. at pp. 907–908 [communication of settlement offer]; Navellier
v. Sletten, supra, 29 Cal.4th at pp. 86, 90 [negotiation and
execution of release of claims]; Seltzer, at pp. 963, 969 [settlement
negotiations].)
Here, the photographs relate to the substantive issues in
the Camacho litigation because Camacho’s writ petition sought to
compel the City to provide him with the photographs he had
requested of all LAPD officers. The photographs were produced to
Camacho, a party, as part of the settlement of that litigation. The
City’s activity in producing the photographs is therefore protected
by the anti-SLAPP statute. (See § 425.16, subd. (e)(2).)
B. There Is No Conclusive Evidence the City’s
Conduct Was Illegal
Nevertheless, Plaintiffs argue the City is not entitled to the
protection of the anti-SLAPP statute because its production of the
8
photographs was illegal. According to Plaintiffs, “the City
intentionally did not redact photographs of officers who were
undercover prior to July 2022,” and thus, the City willfully
violated Penal Code section 832.7, subdivision (b)(6)(D), which
they say amounts to a criminal misdemeanor under Government
Code section 1222. The anti-SLAPP law does not apply “where
either the defendant concedes the illegality of [his] conduct or the
illegality is conclusively shown by the evidence.” (Flatley v.
Mauro (2006) 39 Cal.4th 299, 316 (Flatley).) But that narrow
exception does not apply here because the City has not conceded
it engaged in any illegal activity, and Plaintiffs have presented no
conclusive evidence to the contrary.
First, the operative complaints do not allege the City
engaged in criminal conduct. (Cf. Soukup, supra, 39 Cal.4th at
p. 285 [the defendant’s conduct was “alleged to have been
illegal”].) Second, the evidence Plaintiffs rely upon to
demonstrate illegality—a letter accompanying the photograph
production—does not expressly mention police officers who
worked in an undercover capacity prior to July 2022, let alone
conclusively establish the City intentionally produced their
photographs. Third, the City has maintained it “inadvertently
produced . . . images of officers working in an undercover
capacity.” For that matter, even Plaintiffs’ opening brief on
appeal repeatedly characterizes the City’s production as
“negligent.” That distinguishes this case from Towner, where the
defendants did not dispute they willfully violated Penal Code
section 832.7. (Towner v. County of Ventura (2021)
63 Cal.App.5th 761, 772–773.) Accordingly, to the extent the
City’s “intent is a disputed factual issue” (Seltzer, supra,
182 Cal.App.4th at p. 965), that issue “cannot be resolved within
9
the first step [of an anti-SLAPP motion,] but must be raised . . .
in connection with the plaintiff’s burden to show a probability of
prevailing on the merits” (Flatley, supra, 39 Cal.4th at p. 316).
Plaintiffs have not “conclusively establishe[d]” the City’s
production of the photographs “was illegal as a matter of law.”
(Flatley, supra, 39 Cal.4th at p. 320; see also Seltzer, supra,
182 Cal.App.4th at pp. 964–967 [factual disputes precluded a
showing of illegality].) We therefore agree with the trial court the
City carried its burden to show Plaintiffs’ claims arose from their
activity protected by the anti-SLAPP statute.
III. Most of Plaintiffs’ Causes of Action Are Barred by
the Litigation Privilege
Because the City prevailed on the first step of the anti-
SLAPP test, the burden shifted to Plaintiffs to demonstrate their
causes of action had minimal merit. (See Oasis West Realty, LLC
v. Goldman, supra, 51 Cal.4th at pp. 819–820.) That typically
requires a plaintiff to make a sufficient prima facie showing of
each required element for each cause of action. (See Billauer v.
Escobar-Eck (2023) 88 Cal.App.5th 953, 964–965 [“the absence of
a necessary element” causes the plaintiff’s claim to fail as a
matter of law].)
Here, however, we need not engage in that analysis for
most of Plaintiffs’ causes of action because they are absolutely
barred by the litigation privilege of Civil Code section 47.
(See Medallion Film LLC v. Loeb & Loeb LLP (2024) 100
Cal.App.5th 1272, 1290 [“ ‘A plaintiff cannot show a probability of
prevailing on the merits . . . where the cause of action is barred
by the litigation privilege.’ ”].)
10
A. The Litigation Privilege Applies to the City’s
Production of Photographs
“The litigation privilege, codified at Civil Code section 47,
subdivision (b), provides that a ‘publication or broadcast’ made as
part of a ‘judicial proceeding’ is privileged.” (Action Apartment
Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241
(Action).) Its “ ‘principal purpose . . . is to afford litigants and
witnesses [citation] the utmost freedom of access to the courts
without fear of being harassed subsequently by derivative tort
actions.’ ” (Ibid.; see also id. at pp. 1247–1248 [the privilege is
“ ‘ “the backbone to an effective and smoothly operating judicial
system” ’ ”].)
“The privilege is absolute in nature, applying ‘to all
publications, irrespective of their maliciousness.’ [Citation.] ‘The
usual formulation is that [it] applies to any communication
(1) made in judicial or quasi-judicial proceedings; (2) by litigants
or other participants authorized by law; (3) to achieve the objects
of the litigation; and (4) that [has] some connection or logical
relation to the action.’ [Citation.] The privilege ‘is not limited to
statements made during a trial or other proceedings, but may
extend to steps taken prior thereto, or afterwards.’ ” (Action,
supra, 41 Cal.4th at p. 1241, italics omitted.)
Plaintiffs do not expressly dispute the litigation privilege
applies to the City’s photograph production. We agree. The City,
a defendant in the Camacho litigation, produced the photographs
to settle Camacho’s writ. It is well established that settlement
communications are “within the category of communications to
which the privilege attaches.” (GeneThera, supra,
171 Cal.App.4th at p. 910.)
11
B. The Litigation Privilege Bars Most of
Plaintiffs’ Causes of Action
In light of the broad purposes and absolute nature of the
litigation privilege, it bars a wide variety of tort causes of action.
(Action, supra, 41 Cal.4th at pp. 1241–1242.) As long ago as 1990,
our Supreme Court recognized the litigation privilege absolutely
“immunize[s] defendants from tort liability based on” various
theories, including “invasion of privacy,” and “negligence.”
(Silberg v. Anderson (1990) 50 Cal.3d 205, 215 (Silberg); see also
Action, at pp. 1241–1242, quoting Silberg, at pp. 213, 215.)
Plaintiffs’ operative complaints plead causes of action for
negligence, invasion of privacy, public disclosure of private facts,
negligent infliction of emotional distress, breach of contract (third
party beneficiary), and legal malpractice.4 The trial court
determined all but legal malpractice were barred by the litigation
privilege. The Plaintiffs have not demonstrated that was error.
1. Invasion of Privacy and Public Disclosure
of Private Facts
Each of Plaintiffs’ operative complaints contain two privacy
causes of action: one labeled “invasion of privacy” and one labeled
“public disclosure of private facts.” An invasion of privacy cause
4 Although the trial court determined Plaintiffs had no
private right of action under Penal Code section 832.7, we need
not and do not reach that issue. Plaintiffs did not plead a
standalone cause of action for violation of section 832.7. We will
not redraft their complaint to plead “ ‘a claim that has not in fact
been specifically alleged, and then assess whether the pleading
that we have essentially drafted could survive the anti-SLAPP
motion directed at it.’ ” (Medical Marijuana, Inc. v.
ProjectCBD.com (2020) 46 Cal.App.5th 869, 883, italics omitted.)
12
of action can be based upon common law, statute, or the
California Constitution. (See Hill v. National Collegiate Athletic
Assn. (1994) 7 Cal.4th 1, 24–27 (Hill) [common law torts,
including “public disclosure of private facts”]; id. at pp. 39–40
[constitutional right to privacy]; see, e.g., Ribas v. Clark (1985)
38 Cal.3d 355, 365 (Ribas) [statutory cause of action under Pen.
Code, § 637.2]; Alim v. Superior Court (1986) 185 Cal.App.3d 144,
149–150 [statutory cause of action under Civ. Code, § 1798.53].)
Regardless of the label, both Plaintiffs’ privacy causes of action
are plainly barred by the litigation privilege under binding
Supreme Court precedent.
Our Supreme Court has already held “the [litigation]
privilege protects against all tort causes of action except for
malicious prosecution, including those alleging invasion of
privacy.” (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948,
952, italics added (Jacob B.); see also Silberg, supra, 50 Cal.3d at
p. 215.) It squarely “bars a privacy cause of action whether
labeled as based on common law, statute, or Constitution.”
(Jacob B., at p. 962; see also Ribas, supra, 38 Cal.3d at pp. 364–
365 [privilege bars common law and statutory invasion of
privacy].)
In Jacob B., the Supreme Court considered “whether
[courts] should distinguish between” the application of the
litigation privilege bar to invasion of privacy claims based on
“common law and [statute],” and its application to “a claim based
on the state Constitution.” (Jacob B., supra, 40 Cal.4th at p. 960.)
It “conclude[d] . . . that the litigation privilege applies . . . to a
constitutionally based privacy cause of action,” in part because
when voters enacted the constitutional provision, they were
“mindful of the preexisting litigation privilege” and did not intend
13
to override it. (Id. at p. 961.) The court refused to engage in its
own “balancing of the litigation privilege and the constitutional
right of privacy on a case-by-case basis,” because “[i]n adopting
the litigation privilege, the Legislature has already done the
balancing.” (Id. at p. 962.) “ ‘[T]he vital public policy’ ” furthered
by the privilege “exists . . . not on a case-by-case basis[,] but in all
cases.” (Ibid.) For that reason, we follow the Supreme Court’s
repeated admonitions and conclude the litigation privilege bars
Plaintiffs’ invasion of privacy and public disclosure of private
facts causes of action. (See ibid.)
In their reply brief, Plaintiffs argue Jacob B. is irrelevant
because it analyzed article I, section 1 of the California
Constitution, while their invasion of privacy cause of action
depends upon article I, section 3, subdivision (b)(3). We disagree.
“[A]rticle I, section 1 of the California Constitution creates a right
of action” for invasion of privacy. (Hill, supra, 7 Cal.4th at p. 20.)
Section 3 gives the public “the right of access to information”
(Cal. Const., art. I, § 3, subd. (b)(1)), but does not “supersede[] or
modif[y] the right of privacy guaranteed by Section 1 or affect[]
the construction of any statute . . . or other authority to the
extent that it protects that right to privacy” (id., subd. (b)(3)).
Nothing in section 3 suggests it confers any additional privacy
rights that could be vindicated through an independent invasion
of privacy cause of action.
Plaintiffs also argue Long Beach Police Officers Assn. v.
City of Long Beach (2014) 59 Cal.4th 59, 66, “severely
undermines” the relevance of Jacob B. We disagree. Long Beach
says nothing about the litigation privilege at all, let alone
demonstrates the privilege does not bar privacy causes of action.
That case considered whether a city had to disclose the names of
14
officers involved in a fatal shooting in response to a CPRA
request or could withhold them pursuant to confidentiality
statutes such as Penal Code sections 832.7, subdivision (a) and
832.8, subdivision (d). (Long Beach, at p. 71.) We are not
concerned here with whether Plaintiffs could make a sufficient
showing of the elements of an invasion of privacy cause of action
or whether the City’s disclosure of the photographs violated
statutes like section 832.7. Instead, we are deciding if the
absolute litigation privilege bars Plaintiffs’ invasion of privacy
cause of action as a matter of law.
In that regard, the absolute nature of the litigation
privilege protects the City’s photograph production, “even if we
assume[d]” the production violated confidentiality laws.
(Jacob B., supra, 40 Cal.4th at p. 958.) Because the City’s
production of photographs to settle the Camacho writ “is a
category of communication permitted by law,” it is privileged,
notwithstanding this “specific communication might not be
permitted by law because . . . it was . . . meant to be kept
confidential.” (Id. at p. 959.)
The litigation privilege thus bars Plaintiffs’ causes of action
for invasion of privacy and public disclosure of private facts.
Plaintiffs ask us to recognize an exception to the litigation
privilege for causes of action premised upon Penal Code section
832.7. We decline their invitation. Some Courts of Appeal have
determined the litigation “privilege does not apply to causes of
action based on violations” of certain statutes, like the California
Rosenthal Fair Debt Collection Act and the Federal Fair Debt
Collection Act (People v. Persolve, LLC (2013) 218 Cal.App.4th
1267, 1275) on the ground those statutes were “ ‘more specific’
than the privilege, and . . . would be ‘significantly or wholly
15
inoperable’ if the privilege applied.” (Komarova v. National Credit
Acceptance, Inc. (2009) 175 Cal.App.4th 324, 339 (Komarova)).
But in those cases, it was unsettled whether the litigation
privilege barred the claims at issue. (Id. at p. 337 [“The issue has
not yet been discussed in any reported California state court case
. . . .”]; see also Persolve, at pp. 1275–1276 [Federal Act claim not
barred].)
By contrast, the Supreme Court has clearly and repeatedly
held the litigation privilege absolutely “bars a privacy cause of
action whether labeled as based on common law, statute, or the
Constitution.” (Jacob B, supra, 40 Cal.4th at p. 962.) We will not
disregard that clear directive. (See Rittiman v. Public Utilities
Com. (2022) 80 Cal.App.5th 1018, 1033 [“We . . . are bound to
follow Supreme Court precedent.”].) In fact, the Komarova court
itself analyzed the litigation privilege bar differently for the
two causes of action before it: a novel cause of action and an
intentional infliction of emotional distress tort. (Komarova,
supra, 175 Cal.App.4th at pp. 337, 341.) Despite concluding an
exception was warranted for the former, it readily acknowledged
the latter was barred because “[i]t is well settled that the
litigation privilege bars causes of action for intentional infliction
of emotional distress.” (Id. at p. 341.) Because we do not write
upon a blank slate in this area, we conclude the litigation
privilege bars Plaintiffs’ privacy causes of action under well-
established law.
2. Negligence and Negligent Infliction of
Emotional Distress
We further agree with the trial court the litigation privilege
bars Plaintiffs’ negligence and negligent infliction of emotional
distress causes of action. First, “there is no independent tort of
16
negligent infliction of emotional distress”–“[t]he tort is
negligence.” (Potter v. Firestone Tire & Rubber Co. (1993)
6 Cal.4th 965, 984.) And second, as we discussed above, the
litigation privilege categorically bars tort causes of action for
negligence. (Silberg, supra, 50 Cal.3d at p. 215.) Plaintiffs do not
separately address these causes of action or argue they can
establish a probability of success on the merits. (See Baral,
supra, 1 Cal.5th at p. 384.)
3. Breach of Contract (Third Party
Beneficiary)
Plaintiffs also do not separately address their breach of
contract cause of action, nor argue the litigation privilege applies
any differently to that cause of action than to those discussed
above. Indeed, Plaintiffs do not argue the trial court erred in
determining the litigation privilege barred the breach of contract
cause of action, separate and apart from the privacy causes of
action. (Cf. Navellier v. Sletten (2003) 106 Cal.App.4th 763, 773–
774 [examining application of litigation privilege to contract
claims].) Thus, they have forfeited any challenge to the trial
court’s conclusion. (See People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 408 (Bryant) [argument “is forfeited by the
failure to raise it in the opening brief”]; see also Pfeifer, supra,
211 Cal.App.4th at p. 1282.)
Even assuming the litigation privilege did not bar this
cause of action, reversal is not warranted. Plaintiffs have barely
mentioned breach of contract on appeal, let alone described its
elements or argued they can show a probability of success to
carry their burden at the second anti-SLAPP step. (See Baral,
supra, 1 Cal.5th at pp. 384–385.)
17
IV. Plaintiffs Have Not Shown Their Legal Malpractice
Cause of Action Had Minimal Merit
The trial court concluded the Plaintiffs had not shown a
probability of success on their legal malpractice cause of action
because “[n]one of the [d]efendants had a direct or an implied
attorney-client relationship” with Plaintiffs. We agree Plaintiffs
fail to show that cause of action had minimal merit.
A. The Anti-SLAPP Statute Applies
Plaintiffs conclusorily assert legal malpractice claims are
not generally subject to anti-SLAPP motions, but they do not
explain why this specific cause of action does not arise from
protected activity. As discussed in part II.A., ante, Plaintiffs have
not challenged the trial court’s conclusion the City carried its
burden to show the anti-SLAPP law applied. Their vague
assertion, untethered to any argument specific to this
malpractice cause of action, is insufficient to challenge the court’s
conclusion the anti-SLAPP statute applies. In any event, we
readily conclude “the principal thrust of the conduct underlying”
Plaintiffs’ legal malpractice cause of action is the City’s protected
activity: the settlement of the Camacho writ and the documents
produced therewith. (Freeman v. Schack (2007) 154 Cal.App.4th
719, 732.)
B. Plaintiffs Have Not Shown the City Owed
Them a Duty
The existence of a duty by the defendant to the plaintiff is
an essential element of a legal malpractice claim. (Gordon v.
Ervin Cohen & Jessup LLP (2023) 88 Cal.App.5th 543, 554
(Gordon).) Without that, “plaintiffs cannot establish . . . their
malpractice cause of action” (ibid.) and cannot show the requisite
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probability of success (Baral, supra, 1 Cal.5th at pp. 384–385).
Plaintiffs have not shown they were owed a duty here.
1. Plaintiffs Were Not Clients
“A lawyer has a ‘duty . . . to use such skill, prudence, and
diligence as members of [the legal] profession commonly possess
and exercise’ when representing a client. [Citation.] A client may
accordingly sue the lawyer for legal malpractice if the lawyer
breaches that duty, that breach proximately injures the client,
and the client suffers actual loss or damage.” (Gordon, supra,
88 Cal.App.5th at p. 554.) The operative complaints allege the
City Attorney’s Office “represented Plaintiffs . . . when it
negotiated” the Camacho settlement.
But on appeal, Plaintiffs do not argue they were clients of
the City or the other defendants. Plaintiffs have thus forfeited
any argument the City owed them a duty based upon a purported
lawyer-client relationship. (See Bryant, supra, 60 Cal.4th at p.
408; see also Pfeifer, supra, 211 Cal.App.4th at p. 1282.)
2. Plaintiffs Were Not Intended Third Party
Beneficiaries
Apart from the duty to clients, “a lawyer can sometimes
owe a duty to third parties who are the intended beneficiaries of
the lawyer’s legal work for the client, such as when the lawyer is
retained by the client to draft a will, a testamentary trust, or an
inter vivos trust or gift.” (Gordon, supra, 88 Cal.App.5th at
p. 554, italics omitted; see also Lucas v. Hamm (1961) 56 Cal.2d
583, 590–591 (Lucas).) “A lawyer has a duty to a nonclient third
party only if the client’s intent to benefit that third party (in the
way the third party asserts in their malpractice claim) is ‘clear,’
‘certain’ and ‘undisputed.’ ” (Gordon, at p. 556.) The plaintiff
must “establish[] that the client, in a clear, certain and
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undisputed manner, told the lawyer, ‘Do X’ (where X benefits the
plaintiff).” (Ibid.)
In Lucas, the court held “intended beneficiaries of a will
who lose their testamentary rights because of failure of the
attorney who drew the will to properly fulfill his obligations . . .
may recover as third-party beneficiaries.” (Lucas, supra,
56 Cal.2d at p. 591.) The court cited six factors to be considered in
determining whether a defendant attorney should be held liable
to a person not in privity: “the extent to which the transaction
was intended to affect the plaintiff, the foreseeability of harm to
him, the degree of certainty that the plaintiff suffered injury, the
closeness of the connection between the defendant’s conduct and
the injury, . . . the policy of preventing harm” (id. at p. 588), and
whether imposition of liability “would impose an undue burden
on the profession” (id. at p. 589).
The parties have not cited, and we have not located, any
cases outside of the trusts and estates context in which third
parties not in privity with an attorney were permitted to pursue
a malpractice claim. Even in that context, courts have refused to
find attorneys liable to unnamed potential beneficiaries on the
ground that “extension of liability would ‘impose an undue
burden on the profession.’ ” (Chang v. Lederman (2009)
172 Cal.App.4th 67, 84 (Chang).)
In Goldberg v. Frye (1990) 217 Cal.App.3d 1258, 1262–1263
(Goldberg), individuals who had been granted legacies in a will
sued an attorney who had settled a lawsuit brought against the
client’s estate that affected whether there would be enough
money to pay the legacies.
Rejecting their claim, the Goldberg court found nothing to
indicate the third parties were anything more than incidental
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beneficiaries. “Innumerable instances in modern practice are
encountered in which services performed by an attorney will
benefit others besides his client. The enforcement of contractual
rights by a contractor will benefit the contractor’s employees.
Successful labor litigation on behalf of a union will benefit the
union members. Responsible representation of a city, county or
other governmental unit will improve the lot of its citizens and
employees. In each of these instances the fortunes of third parties
are affected by the performance of an attorney retained by a
client not a member of the benefited group. The fact that third
parties are thus benefited, or damaged, by the attorney’s
performance does not give rise to a duty by the attorney to such
third parties.” (Goldberg, supra, 217 Cal.App.3d at p. 1268; see
also Chang, supra, 172 Cal.App.4th at p. 82 [distinguishing
intended beneficiaries from potential beneficiaries].)
Plaintiffs have not adequately shown the City intended to
benefit them in the settlement agreement. The evidence Plaintiffs
rely upon does not show in a “clear, certain and undisputed
manner” they were intended beneficiaries of the settlement
agreement. (Gordon, supra, 88 Cal.App.5th at p. 556.) A letter
accompanying the production of photographs stated counsel for
the parties agreed “images of officers working in an undercover
capacity as of the time the pictures were downloaded (end of July
2022) are not included.” We question if this letter even amounts
to a contract. (See Civ. Code, §§ 1550 [defining contract], 1559
[defining third party beneficiaries].)
But in any event, the letter reveals no intent on the part of
the City to benefit Plaintiffs. Rather, it states the “production
fulfills the CPRA request at issue in the writ,” and “all that
remains after your client’s review of the production is the issue of
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Attorney’s fees and a full settlement of the action.” That suggests
the intent was to settle the Camacho writ; it does not show the
City intended to benefit any third parties, let alone Plaintiffs.
Standing alone, the letter is not “clear, certain[, or] undisputed
evidence of the [City’s] intent to benefit [Plaintiffs] in the way
they are seeking to vindicate.” (Gordon, supra, 88 Cal.App.5th at
p. 557; see also id. at pp. 557–558 [examples of clear client
intent]; Chang, supra, 172 Cal.App.4th at p. 82 [no duty of care
by lawyer “where there is a question about whether the third
party beneficiary was, in fact, the decedent’s intended
beneficiary”].)
Because Plaintiffs have not shown the City clearly intended
to benefit them via the settlement agreement, they did not
sufficiently show they were owed a duty pursuant to that
agreement. (See Gordon, supra, 88 Cal.App.5th at p. 560.) Thus,
they did not show their legal malpractice cause of action has
minimal merit. (See id. at p. 554; see also Baral, supra, 1 Cal.5th
at pp. 384–385.)
DISPOSITION
The judgment is affirmed. The City is entitled to costs on
appeal. (See Cal. Rules of Court, rule 8.278(a)(1)–(2).)
RICHARDSON, J.
WE CONCUR:
CHAVEZ, Acting P. J. GOORVITCH, J.
Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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