Nelson v. Kremer CA1/1

Filed 4/29/16 Nelson v. Kremer CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

KAREN NELSON,

Plaintiff and Respondent,

A144130

v.

KENNETH KREMER, (Alameda County

Super. Ct. No. RG11580668)

Defendant and Appellant.

Defendant and cross-complainant Kenneth Kremer appeals from an order granting

in large part plaintiff and cross-defendant Karen Nelson’s special motion to strike his

cross-claims (“anti-SLAPP” motion pursuant to Code Civ. Proc., § 425.16, subd. (b)(1)).

The cross-claims at issue on appeal—extortion, wrongful use of administrative process,

and abuse of process—arise from administrative and legal action Nelson pursued against

Kremer after a failed real estate deal.

On appeal, we review the trial court’s ruling on the special motion to strike de

novo and so are not bound by the reasoning employed by the lower court. Rather, we

independently examine (a) whether the cross-claims were properly subject to a special

motion to strike (prong one of the anti-SLAPP analysis) and (b) if they were, whether

Kremer made a sufficient evidentiary showing to establish a probability of succeeding on

the merits of his cross-claims (prong two of the anti-SLAPP analysis).

We conclude the three cross-claims were subject to a special motion to strike. We

further conclude Kremer’s evidentiary showing was insufficient to establish a probability

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he would succeed on the merits. We therefore affirm the order to the extent it granted

Nelson’s special motion to strike.

BACKGROUND

Nelson sued Kremer over a real estate deal gone sour. The two, both real estate

brokers, had formed a limited liability company to purchase a small shopping center in

Bay Point, California. Kremer acted not only as the agent for the two as buyers, but also

represented the seller. According to Nelson, Kremer breached his fiduciary duties to her

and their investment company and committed malpractice, fraud, and other violations of

California law.

Three years into the litigation, and only months before the scheduled trial date,

Kremer filed a verified cross-complaint, claiming Nelson unilaterally cancelled the deal

out of personal spite towards him. He alleged four cross-claims: extortion, wrongful use

of administrative proceedings, abuse of process, and defamation.

In his cross-claim for extortion, Kremer alleged he and Nelson met on August 27,

2011, at which time Nelson threatened to file an administrative claim with the

Department of Real Estate1 that could result in him losing his real estate license. She

allegedly said she would file a claim if Kremer pressed forward with the arbitration

proceeding he had filed to enforce the shopping center sale or if he did not refund her

$50,000 deposit.

In his cross-claim for wrongful use of administrative proceedings, Kremer alleged

Nelson had, in fact, filed an administrative claim with the Department of Real Estate, and

the claim was eventually dismissed, a result favorable to him.

1

The Department of Real Estate is now known as the Bureau of Real Estate. We

refer to the department by its former name, given the timeframe relevant to this case and

the parties’ own usage. (See Ryan-Lanigan v. Bureau of Real Estate (2013)

222 Cal.App.4th 72, 74, fn. 1.)

2

In his cross-claim for abuse of process, Kremer alleged Nelson maliciously

included several causes of action in her complaint that were clearly subject to arbitration,

sought to enjoin the ongoing arbitration, and otherwise filed motions and used discovery

for improper purposes.

In his cross-claim for defamation, Kremer alleged Nelson told others, falsely, that

he was mentally unstable, committed criminal acts, acted fraudulently, and

misrepresented facts when acting as a real estate agent.

Nelson responded with a special motion to strike. In her moving papers, Nelson

included a copy of a September 2012 formal accusation the Department of Real Estate

lodged against Kremer. She also included interim and final orders, issued in 2014, from

the Kremer-initiated arbitration proceedings. In these orders, Nelson was declared the

prevailing party and Kremer was found to have breached his fiduciary duties as a real

estate agent both to Nelson and to the parties’ LLC.

In opposition to the special motion to strike, Kremer submitted a brief declaration

explaining the “basis” of his claims. Though largely repetitious of his cross-complaint, it

was not entirely consistent with his verified pleading.

His extortion cross-claim, he now asserted, was based on statements Nelson

allegedly made on April 27, 2011, not August 27 as alleged in the verified cross-

complaint. He characterized Nelson’s asserted threat as to “take” unspecified “action”

that could deprive Kremer of his real estate license, unless Kremer halted his arbitration

and released her deposit. His abuse of administrative process cross-claim, he asserted,

was based on Nelson following through on her threat and contacting the Department of

Real Estate, which she did on June 20, 2011—a date between the two dates Kremer

provided for Nelson’s supposedly unlawful threat, April 27 and August 27. In response

to the copy of the administrative accusation Nelson provided to the court, Kremer

maintained the accusatory pleading “was not the result of any determination that there

was any validity to Nelson’s complaint” and attached letters showing the department,

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after further consideration, chose to dismiss the accusation.2 Finally, as to his abuse of

process claim, Kremer asserted Nelson wrongfully requested restraining orders and

opposed arbitration in an effort to force him into bankruptcy.

The trial court granted Nelson’s special motion to strike in part, striking the first

three cross-claims on the ground they arose from protected speech activity and Kremer

had not shown a probability of prevailing. It denied the motion as to the cross-claim for

defamation, concluding the statements at issue were not protected under the anti-SLAPP

statute.

DISCUSSION

Under California’s anti-SLAPP statute, a cause of action arising from the exercise

of the constitutionally protected rights to petition or engage in free speech shall be

stricken unless the proponent of the cause of action shows a probability of prevailing on

the claim. (Code Civ. Proc., § 425.16, subd. (b)(1).) We review de novo both the issue

of whether a cause of action arises from protected activity (the first prong of the anti-

SLAPP analysis) and whether the plaintiff or cross-claimant has shown a probability of

prevailing (the second prong of the analysis). (South Sutter, LLC v. LJ Sutter Partners,

L.P. (2011) 193 Cal.App.4th 634, 657.) We address each of the three stricken cross-

claims in order.

Extortion

The anti-SLAPP statute protects the right to petition before courts and

administrative bodies (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th

1106, 1115 [“ ‘ “[t]he constitutional right to petition . . . includes the basic act of filing

litigation or otherwise seeking administrative action” ’ ”], italics added), and this

2

Kremer also declared his abuse of administrative process claim arose from

Nelson’s pursuit of relief before an organization called the Bay East Association of

Realtors. This conduct was not alleged in his cross-complaint and was not argued in the

appellate briefs. We do not mention it further.

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protection extends to pre-dispute demands (Collier v. Harris (2015) 240 Cal.App.4th 41,

54 [“an attorney’s settlement demand letter on a client’s behalf generally is protected as a

petition activity”]; Malin v. Singer (2013) 217 Cal.App.4th 1283, 1299 (Malin) [demand

letter threatening court litigation was protected activity]; Rohde v. Wolf (2007)

154 Cal.App.4th 28, 36–37 [“the spectre of litigation loomed over all communications

between the parties at that time;” therefore communications were protected activity]).

However, illegal speech, including speech constituting extortion, is not protected

speech and the anti-SLAPP statute cannot be wielded to strike causes of action based

upon it. (Flatley v. Mauro (2006) 39 Cal.4th 299, 320 (Flatley).) Kremer, thus, contends

his cross-claim for extortion was not subject to a special motion to strike at all and

Nelson’s motion, as to that claim, should not have survived the first prong of the anti-

SLAPP analysis.

“Flatley, however, is a very narrow exception. It applies only ‘where either the

defendant concedes the illegality of its conduct or the illegality is conclusively shown by

the evidence. . . .’ ” (Finton Construction, Inc. v. Bidna & Keys, APLC (2015)

238 Cal.App.4th 200, 210.) Thus, if “a factual dispute exists about the legitimacy of the

defendant’s conduct, it cannot be resolved within the first step but must be raised by the

plaintiff in connection with the plaintiff’s burden to show a probability of prevailing on

the merits.” (Flatley, supra, 39 Cal.4th at p. 316.) “[T]he question of whether the

defendant’s underlying conduct was illegal as a matter of law is preliminary, and

unrelated to the second prong question of whether the plaintiff has demonstrated a

probability of prevailing, and the showing required to establish conduct illegal as a matter

of law—either through defendant’s concession or by uncontroverted and conclusive

evidence—is not the same showing as the plaintiff’s second prong showing of probability

of prevailing.” (Id. at p. 320.)

Nelson has never conceded that she engaged in extortion. We therefore turn to

whether Kremer’s showing in opposition to the motion conclusively established extortion

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as a matter of law, bearing in mind the Supreme Court’s comment in Flatley that it found

extortion as a matter of law “based on the specific and extreme circumstances” of that

case. (Flatley, supra, 39 Cal.4th at p. 332, fn. 16.)

“Extortion is the obtaining of property from another, with his consent, . . . induced

by a wrongful use of force or fear, or under color of official right.” (Pen. Code, § 518.)

The elements of attempted extortion (Pen. Code, § 524), which Kremer alleges, are

therefore: (1) a specific intent to commit extortion, and (2) a direct but ineffectual act

done towards its commission. (Cross v. Cooper (2011) 197 Cal.App.4th 357, 386–387.)

Only certain threats create the “fear” required for extortion and attempted

extortion. These include threats to accuse the victim or a relative of a crime (Pen. Code,

§ 519, subd. (2)) or to “expose, or to impute to him, her, or them a . . . disgrace, or crime”

(Pen. Code, § 519, subd. (3)).

In Flatley, the Supreme Court cautioned that “rude, aggressive, or even belligerent

prelitigation negotiations, whether verbal or written, that may include threats to file a

lawsuit, report criminal behavior to authorities or publicize allegations of wrongdoing”

do not “necessarily constitute extortion. [Citation.] Nor is extortion committed by an

employee who threatens to report the illegal conduct of his or her employer unless the

employer desists from that conduct.” (Flatley, supra, 39 Cal.4th at p. 332, fn. 16.)

Focusing on Nelson’s supposed demand for return of her $50,000 deposit and

assertion she would file an administrative complaint if he did not, Kremer maintains the

trial court erred in ruling he failed to state a claim for extortion because he did not allege

Nelson threatened to accuse him of a crime or to report him to criminal authorities.

While we agree extortion or attempted extortion is not limited to threats of criminal

accusations (see Cohen v. Brown (2009) 173 Cal.App.4th 302, 310–311, 317–318

(Cohen)), that does not answer the threshold issue—whether Kremer made an evidentiary

showing conclusively establishing extortion as a matter of law.

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To answer that question, we compare the record here with those in Flatley and

Cohen in which the appellate courts affirmed denials of motions to strike on the ground

the records established extortion as a matter of law.

In Flatley, there was a detailed record of sustained and egregious conduct by the

defendant lawyer demanding a nine-figure settlement on threat of publicizing a supposed

sexual assault, instigating a criminal investigation, and hounding Flatley around the

world if the demand was not met. The demand letters, alone, consisted of a barrage of

threats, highlighted in a multitude of respects to emphasize their threatening character.

There were also a series of threatening telephone calls. The tenor and character of this

campaign added up to only thing—extortion. (Flatley, supra, 39 Cal.4th at pp. 307–311.)

The attorney’s conduct in Cohen was not quite as egregious as that in Flatley, but it was

similar, culminating in the attorney preparing a false complaint to the State Bar and

signing his client’s name to it, followed by a lengthy e-mail that the plaintiff would “live

to regret” having a complaint filed against him, the State Bar would make the plaintiff’s

life “a living hell” and he should immediately sign the disputed settlement checks.

(Cohen, supra, 173 Cal.App.4th at pp. 311, 317.)

The record here is simply not of the same weight and character. Kremer’s

showing consisted of his declaration reciting a single comment Nelson allegedly made at

one meeting, where she complained about how he was handling the real estate deal,

asserted he was breaching fiduciary duties owed to her and to their investment company

(claims later determined to be true in the arbitration), wanted the return of her deposit and

said she would file a complaint with the Department of Real Estate if he did not change

his behavior. This does not begin to conclusively establish extortion as a matter of law.

Furthermore, in his verified cross-complaint Kremer alleged Nelson made the threat to

file an administrative complaint in late August 2011, two months after she actually lodged

her complaint with the Department in June 20, 2011. Nelson’s supposed threat makes no

sense under this timeline. In his later declaration filed in opposition to the anti-SLAPP

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motion, Kremer averred the threat to file an administrative complaint was made in April

2011. At best Kremer created a conflict in the evidence as to when Nelson allegedly

threatened to file an administrative complaint, further militating against any conclusion

that he conclusively established extortion as a matter of law. (See Acuna v. San Diego

Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1416 [a litigant is bound by facts

pleaded in a verified complaint]; Brecher v. Gleason (1972) 27 Cal.App.3d 496, 499,

fn. 1 [“A verified assertion in a pleading is a conclusive concession of the truth of the

matter pleaded.”]; Avalon Painting Co. v. Alert Lumber Co. (1965) 234 Cal.App.2d 178,

185 [stating rule that “allegations of fact in a verified complaint which are subsequently

omitted or contradicted are still binding on the complainant”]; see also Parker v.

Twentieth Century–Fox Film Corp. (1970) 3 Cal.3d 176, 181 [in opposing summary

judgment, one party may point to admissions in an opponent’s pleading to show the

existence of a fact issue for trial].).

We therefore proceed to prong two of the anti-SLAPP analysis—whether Kremer

carried his burden of establishing a probability of prevailing on his extortion cross-claim.

Our review of his evidentiary showing, measured against the probability of prevailing

standard, leads us to conclude he did not carry his burden in this regard. In evaluating a

plaintiff’s or cross-claimant’s probability of prevailing, we apply a “summary-judgment-

like” test (Taus v. Loftus (2007) 40 Cal.4th 683, 714), accepting as true the evidence

favorable to the plaintiff or cross-claimant and evaluating the defending party’s evidence

only to determine whether it defeats the cross-claimant’s evidence as a matter of law

(Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823, disapproved on other grounds

in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5).

The evidence put forward at this stage, however, must be admissible. (Bently

Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 425–426 (Bentley Reserve).)

Allegations in a verified complaint or cross-complaint are widely viewed as insufficient,

and certainly are insufficient, to the extent they do not reflect personal knowledge.

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(Compare Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 351, and Wallace v.

McCubbin (2011) 196 Cal.App.4th 1169, 1212, with Salma v. Capon (2008)

161 Cal.App.4th 1275, 1289–1290 (Salma).)

The principal difficulty Kremer faces in showing a probability of prevailing on his

extortion cross-claim is California’s litigation privilege codified in Civil Code section 47,

subdivision (b). Regardless of whether he may have generally averred the elements of an

extortion claim, he did not rebut Nelson’s privilege defense.

We recognize Nelson has not been vigorous in her assertion of the litigation

privilege. However, she argued in her anti-SLAPP motion, and has also done so on

appeal, that “Civil Code section 47(b)(2) precludes recovery for tortious injury resulting

from publications or broadcasts made during the course of judicial or quasi-judicial

proceedings.” And in discussing the second prong, in particular, she argued Kremer

“MUST establish that there are NO constitutional or statutory defenses that apply to

protect” her conduct.

The trial court did not reach the issue of privilege as to Kremer’s extortion cross-

claim, but it did cite to the litigation privilege as an “important[]” ground for why, in its

view, Kremer’s wrongful use of administrative process and abuse of process cross-claims

should be barred. Thus, it is clear the litigation privilege was in play. We do not have a

transcript of the hearing on the anti-SLAPP motion. We can only assume, however,

based on the briefing and ruling below, that the privilege was discussed. Moreover,

without the transcript, we must make all presumptions in favor of the judgment and

against appellant, who bore the burden of a providing a record that might enable reversal.

(Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140–1141; Ruelas v. Superior Court (2015)

235 Cal.App.4th 374, 383.)

“ ‘Although originally enacted with reference to defamation [citation], the

privilege is now held applicable to any communication, whether or not it amounts to a

publication [citations], and all torts except malicious prosecution. [Citations.] Further, it

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applies to any publication required or permitted by law in the course of a judicial

proceeding to achieve the objects of the litigation, even though the publication is made

outside the courtroom and no function of the court or its officers is involved. [Citations.]

[¶] The usual formulation is that the privilege 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 have some connection or

logical relation to the action. [Citations.]’ [Citations.] Thus, ‘communications with

“some relation” to judicial proceedings’ are ‘absolutely immune from tort liability’ by the

litigation privilege [citation]. It is not limited to statements made during a trial or other

proceedings, but may extend to steps taken prior thereto, or afterwards.” (Rusheen v.

Cohen (2006) 37 Cal.4th 1048, 1057–1058 (Rusheen).)

The privilege therefore protects even extortionate threats if the threat is made in

“relation” to a pending, or genuinely contemplated, legislative, judicial, or other official

proceeding. (Civ. Code, § 47, subd. (b); People ex rel. Gallegos v. Pacific Lumber Co.

(2008) 158 Cal.App.4th 950, 958 (Gallegos).) It thus applies to extortionate demand

letters sent in connection with legal action, whether judicial or administrative. (Malin,

supra, 217 Cal.App.4th at pp. 1294, 1300, 1302; Gallegos, supra, 158 Cal.App.4th at

p. 958; see also Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 362; see

also King v. Borges (1972) 28 Cal.App.3d 27, 30–34 [letter to then Division of Real

Estate making accusation and asking for investigation absolutely privileged].)

Here, Nelson’s alleged demand for the return of her deposit and threat of legal

action (assuming it was made in April and not in August) was made in relation to not just

a threatened administrative action, but to an administrative complaint that Nelson actually

went ahead and filed. Thus, there can be no doubt Nelson genuinely contemplated

administrative action, the pivotal issue as to the applicability of the privilege in the

context of demands made prior to the actual institution of threatened legal recourse. (See

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Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1251;

Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1489–1490.)

Moreover, after reviewing her complaint and evidence, the department

independently decided to file a formal accusation against Kremer. Although the

department ultimately dismissed its accusation, it was only after further investigation—

the department’s letter to Nelson noted its change of position occurred after “subsequent

review of the evidence” by various attorneys at the department and a decision to accept a

newer attorney’s “interpretation of the transaction documents,” despite a contrary

conclusion by the “Enforcement Manager who initially recommended filing the

Accusation.” Thus, there also can be no doubt that Nelson’s administrative complaint

was not patently devoid of merit and her allegations were of sufficient concern to trigger

independent review by the Department.

In short, on this record, Kremer did not carry his burden of showing a probability

of overcoming Nelsons’ privilege defense and prevailing on his extortion claim.

Accordingly, the trial court properly granted Nelson’s special motion to strike this cross-

claim.

Wrongful Use of Administrative Proceedings

Kremer makes no prong one argument as to his cross-claim for wrongful use of

administrative proceedings, and focuses solely on the second prong of the anti-SLAPP

analysis. We therefore do the same. (See Bently Reserve, supra, 218 Cal.App.4th at

p. 425; Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699.)

Kremer’s wrongful use of administrative proceedings claim is a variant of the

familiar cause of action for malicious prosecution. “It is the general rule that a malicious

prosecution action may be founded upon a proceeding before an administrative body.

Section 680 of the Restatement of Torts declares: ‘One who initiates or procures the

initiation of civil proceedings against another before an administrative board which has

power to take action adversely affecting the legally protected interests of the other, is

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subject to liability for any special harm caused thereby, if (a) the proceedings are initiated

(i) without probable cause to believe that the charge or claim on which the proceedings

are based is well founded, and (ii) primarily for a purpose other than that of securing

appropriate action by the board, and (b) the proceedings have terminated in favor of the

person against whom they are brought.” (Hardy v. Vial (1957) 48 Cal.2d 577, 580; see

also Kurz v. Syrus Systems, LLC (2013) 221 Cal.App.4th 748, 759.)

While the Department of Real Estate proceedings were ultimately dismissed and,

thus, terminated in Kremer’s favor, Kremer’s evidentiary showing falls short as to the

other elements of the tort. While in his declaration Kremer conclusorily asserted Nelson

filed her administrative complaint without probable cause and primarily for a purpose

other than obtaining legal redress from the department, that was tantamount to repeating

the allegations of his cross-claim and does not constitute evidence based on any personal

knowledge supporting his allegations. (See Salma, supra, 161 Cal.App.4th at pp. 1289–

1290.) Thus, it was not an evidentiary showing sufficient to raise a triable issue that

Nelson lacked probable cause to file an administrative complaint and filed her complaint

primarily to pressure Kremer and not to obtain action from the department.

Moreover, as discussed above, other evidence in the record shows the Department

of Real Estate chose to file a formal accusation after considering Nelson’s claims and

evidence. The department, in the end, dismissed the accusation, but only after serious

discussion and a reinterpretation of evidence the initial Enforcement Manager believed

was sufficient to file the accusatory pleading.3 This demonstrates there was at least

probable cause for Nelson’s administrative complaint, as does the results of the

arbitration, in which the arbitrator found Kremer did violate duties owed to Nelson and

the investment company.

3

Kremer’s assertion in his declaration that the department never independently

assessed Nelson’s claims is not based on personal knowledge and is contrary to the letters

from the department explaining why it eventually dismissed her complaint.

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Accordingly, given Kremer’s failure to make a sufficient showing on all the

elements of his claim for wrongful use of administrative proceedings, the trial court also

properly granted Nelson’s special motion to strike this cross-claim.

Abuse of Process

“To succeed in an action for abuse of process, a litigant must establish that the

defendant (1) contemplated an ulterior motive in using the process, and (2) committed a

willful act in the use of the process not proper in the regular conduct of the proceedings.”

(Rusheen, supra, 37 Cal.4th at p. 1057.) Despite the arguable vagaries of this definition,

the Supreme Court has clarified “while a defendant’s act of improperly instituting or

maintaining an action may, in an appropriate case, give rise to a cause of action for

malicious prosecution” (a tort requiring a malicious suit without probable cause and a

favorable result for the party sued), “the mere filing or maintenance of a lawsuit—even

for an improper purpose—is not a proper basis for an abuse of process action.” (Oren

Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d

1157, 1169; S.A. v. Maiden (2014) 229 Cal.App.4th 27, 42; see also JSJ Limited

Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1523 [no claim for abuse of

process based on supposedly frivolous complaint filed to extort settlement];

Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1059

[same].)

Kremer contends Nelson engaged in abuse of process in this lawsuit by filing

several causes of action that clearly should have been asserted in the then pending

arbitration, by seeking an injunction to halt the arbitration, and by employing costly

litigation tactics. Again, Kremer’s declaration in defense of his cross-claim was

essentially a reiteration of his allegations that Nelson filed and has aggressively litigated

her lawsuit, including pursuing claims that should have been arbitrated, to drive him to

the brink of financial ruin. Even apart from the paucity of admissible evidence

supporting his conclusory allegations, the fundamental shortcoming in Kremer’s showing

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is, again, that he failed to show a probability of prevailing against Nelson’s litigation

privilege defense.

As the Supreme Court held in Rusheen, the litigation privilege codified in Civil

Code section 47, subdivision (b), applies to all torts, except malicious prosecution. Thus,

it applies to abuse of process, and in Rusheen it applied to the defendant’s abuse of

process cross-claim based on an allegedly false declaration of service of process and

ensuing wrongful postjudgment levy. (Rusheen, 37 Cal.4th at pp. 1057–1059.) “The

purposes of section 47, subdivision (b), are to afford litigants and witnesses free access to

the courts without fear of being harassed subsequently by derivative tort actions, to

encourage open channels of communication and zealous advocacy, to promote complete

and truthful testimony, to give finality to judgments, and to avoid unending litigation[.]

(Silberg [v. Anderson (1990)] 50 Cal.3d [205,] 213–214.) To effectuate these purposes,

the litigation privilege is absolute and applies regardless of malice. (Id. at pp. 215–216.)

Moreover, ‘ “[i]n furtherance of the public policy purposes it is designed to serve, the

privilege prescribed by [Civil Code] section 47(2) has been given broad application.” ’

(Id. at p. 211.)” (Rusheen, supra, 37 Cal.4th at p. 1063.) The court further explained that

even though this means the privilege will protect some “shady” practitioners, that is

outweighed by the policies undergirding the privilege. (Id. at p. 1064.)

The only threshold issue as to the applicability of the privilege is that it applies to

“communicative” acts, but not to “noncommunicative” acts. (Rusheen, supra, 37 Cal.4th

at p. 1058.) However, it is well established that the filing of pleadings and advocacy

before a court are communicative and therefore within the privilege. (Ibid.)

Accordingly, the privilege plainly applies to the acts Kremer alleged as the basis for his

abuse of process cross-claim.

The trial court therefore also properly granted Nelson’s special motion to strike as

to Kremer’s cross-claim for abuse of process.

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DISPOSITION

The order granting Nelson’s anti-SLAPP motion in part is affirmed. Respondent

to recover costs on appeal.

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_________________________

Banke, J.

We concur:

_________________________

Humes, P. J.

_________________________

Dondero, J.

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