The opinion
Filed 7/13/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
L.G., B284742
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC658783)
v.
M.B.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Delila Corral Lyons, Judge. Affirmed.
Buchalter, Harry W. R. Chamberlain II, Efrat M. Cogan
and Robert M. Dato for Defendant and Appellant.
Mayer Brown, Donald M. Falk, Kim J. Zaneta; Erin
Canfield Smith and Jennafer Dorfman Wagner for Family
Violence Appellate Project as Amicus Curiae on behalf of
Defendant and Appellant.
Caskey & Holzman, Marshall A. Caskey, Daniel M.
Holzman and Neama Cory Barari for Plaintiff and Respondent.
_________________________________
Defendant M.B. appeals from the trial court’s denial of her
motion to dismiss under the “anti-SLAPP” statute (Code Civ.
Proc., § 425.16).1 Plaintiff and respondent L.G. is the former
nanny for M.B. and M.B.’s ex-husband, S.B.2 Respondent filed
this action against Appellant for defamation, invasion of privacy,
and intentional infliction of emotional distress based upon
statements that Appellant made about her in a declaration filed
in support of Appellant’s request for a domestic violence
restraining order in her dissolution action.
Under Civil Code section 47, subdivision (b), statements
made during judicial proceedings are generally privileged and
nonactionable (except in a malicious prosecution claim).3 (Silberg
v. Anderson (1990) 50 Cal.3d 205, 211–212 (Silberg).) However,
section 47, subdivision (b)(1) creates an exception to this
litigation privilege for an “allegation or averment contained in
any pleading or affidavit filed in an action for marital dissolution
or legal separation made of or concerning a person by or against
whom no affirmative relief is prayed in the action.” This marital
dissolution exception (sometimes called the “divorce proviso”; see
Silberg, at p. 216) applies unless the challenged statement is
1 “SLAPP” is an acronym for “[s]trategic lawsuit against
public participation.” (Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)
2Because this case involves allegations of abuse and M.B.
and S.B. have a minor child, we do not use names in this opinion.
We refer to M.B. as “Appellant,” S.B. as “Ex-Husband,” and L.G.
as “Respondent.”
3 Subsequent undesignated statutory references are to the
Civil Code.
2
“sworn to,” is material and relevant to the action, and the person
making the statement does so without malice and with
“reasonable and probable cause” to believe the statement is true.
(§ 47, subd. (b)(1).)
The trial court found that the divorce proviso applied here
because Appellant’s statements were included in a pleading “filed
in” her dissolution action, and Respondent neither asserted nor
was the subject of any request for relief in that action. (§ 47,
subd. (b)(1).) Appellant and amicus curiae Family Violence
Appellate Project (Amicus) argue that the divorce proviso should
be read narrowly to exclude statements made in applications for
domestic violence restraining orders, presenting a number of
policy justifications and legislative intent arguments in support
of such a reading. While these arguments have logical force, we
are not free to disregard the express terms of the statute. We
agree with the trial court that the plain language of section 47,
subdivision (b)(1) makes the divorce proviso applicable here. It is
for the Legislature, not this court, to repeal or rewrite this
subdivision if it wishes to accomplish the policy goals that
Appellant and Amicus urge.
Although we differ on the reason, we also agree with the
trial court’s conclusion that Appellant’s success in obtaining two
temporary restraining orders—one against Ex-Husband in the
dissolution action and one against Respondent in a separate civil
harassment action—did not establish as a matter of law that
there was “reasonable and probable cause” to believe that
Appellant’s challenged statements about Respondent were true.
(§ 47, subd. (b)(1).) The record does not contain sufficient
information concerning the reasons for the two temporary
restraining orders to permit a conclusion that the judges who
3
granted those orders actually made any findings concerning the
facts underlying the particular statements that Respondent
challenges in this action.
Appellant’s legal arguments concerning the litigation
privilege and the effect of the prior rulings on the restraining
orders are her only challenges on appeal to the trial court’s
finding that Respondent established a “probability that [she] will
prevail” on her claims. (Code Civ. Proc., § 425.16, subd. (b)(1).)
Because we reject those legal arguments, we affirm the trial
court’s denial of Appellant’s anti-SLAPP motion.
BACKGROUND
1. The Anti-SLAPP Procedure
Code of Civil Procedure section 425.16 (the anti-SLAPP
statute) provides for a “special motion to strike” when a plaintiff’s
claims arise from acts involving the exercise of the constitutional
rights of freedom of speech and petition for the redress of
grievances, “unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will
prevail on the claim.” (Code Civ. Proc., § 425.16, subds. (a),
(b)(1).) Ruling on an anti-SLAPP motion involves a two-step
procedure. First, the moving defendant must show that the
challenged claims arise from activity that is protected under the
anti-SLAPP statute. (Baral v. Schnitt (2016) 1 Cal.5th 376, 396;
Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) Second, if the
defendant makes such a showing, the “burden shifts to the
plaintiff to demonstrate that each challenged claim based on
protected activity is legally sufficient and factually
substantiated.” (Baral, at p. 396.) In evaluating that showing,
the trial court applies a standard similar to the review of a
summary judgment motion. The court determines “whether the
4
plaintiff’s showing, if accepted by the trier of fact, would be
sufficient to sustain a favorable judgment.” (Ibid.)
2. Appellant’s Requests for Restraining Orders
a. The dissolution action
On April 3, 2017, Appellant filed an ex parte request for a
restraining order against Ex-Husband in her pending dissolution
action. In her declaration in support of the request, Appellant
described abuse by Ex-Husband, including physical beatings
(documented with photographs), verbal threats of violence, and
personal insults. Appellant testified that Ex-Husband owned a
firearm and had a previous conviction for domestic violence.
Appellant also claimed that Ex-Husband threatened to
release embarrassing video recordings of sexual encounters that
Ex-Husband forced her to have. She testified that Ex-Husband
brought “random women” to hotel rooms and compelled Appellant
to participate in sexual intercourse with him and these women,
which he recorded against Appellant’s wishes. Ex-Husband used
threats to release these recordings as a means of control over
Appellant.
Appellant’s declaration also made various allegations about
Respondent. Among other things, Appellant alleged that:
(1) Ex-Husband began a sexual relationship with Respondent
after he hired her as a nanny and set Respondent up as
Appellant’s “rival”; (2) Ex-Husband paid Respondent large
amounts of Appellant’s money for purported nanny services,
including a large lump sum paid to an entity affiliated with
Respondent after Appellant finally fired Respondent;
(3) Respondent became pregnant with Ex-Husband’s child, and
Ex-Husband used Appellant’s money to pay for an abortion; (4) at
Ex-Husband’s instruction, Respondent took Appellant’s children
5
to Europe without Appellant’s permission; (5) Respondent acted
as an “agent” for Ex-Husband to “keep tabs” on Appellant for Ex-
Husband; and (6) acting under Ex-Husband’s protection,
Respondent became “manipulative and demanding” and acted as
if she were Ex-Husband’s wife.
The court granted Appellant’s request for a restraining
order and issued a temporary order on a standard Judicial
Council form. The order was to stay in effect until a hearing that
was scheduled for April 24, 2017. At Ex-Husband’s request, the
hearing was continued until October 2017. The record does not
reflect any further hearing on Appellant’s request.4
b. The civil harassment action
On April 10, 2017, Appellant filed an ex parte petition for a
restraining order against Respondent in a civil harassment
proceeding separate from the dissolution action. The petition
sought various stay-away and personal conduct orders as well as
orders permitting Appellant to have access to a storage facility
and prohibiting Respondent from removing items from that
facility.
In a declaration filed in support of her request, Appellant
repeated many of the allegations against Respondent that she
had included in her restraining order request in the dissolution
action, including allegations that Respondent verbally abused
her. Appellant also made additional allegations concerning her
personal property. Appellant alleged that Respondent had said
she was in possession of videos that Ex-Husband was using to
4
The dissolution action apparently was settled in
November 2017.
6
extort Appellant and that Respondent said she will “give them to
[Ex-Husband] if he needs them.” Appellant also claimed that
some of her personal items, including valuable memorabilia from
her entertainment career, had been moved to a storage locker
that was rented using Respondent’s e-mail address and telephone
number and that was under the control of Ex-Husband and
Respondent.
The court issued a temporary order granting Appellant’s
stay-away and personal conduct requests. The order also granted
Appellant immediate access to the identified storage facility and
permission to retrieve her personal belongings from the facility,
and prohibited Respondent from removing any property from the
storage facility “until further order of the court.” The court set a
hearing for May 3, 2017.
There was no appearance for Respondent at the May 3rd
hearing. The court initially granted a five-year restraining order
at that hearing, but subsequently vacated that ruling following a
motion by Respondent claiming that she had not been properly
served prior to the hearing. The court instead continued the
temporary order pending a further hearing. The action
subsequently settled.
3. Respondent’s Complaint
Respondent filed her complaint in this action on April 20,
2017. The complaint asserts claims for defamation, invasion of
privacy, false light, and intentional infliction of emotional
distress based entirely on Appellant’s allegations against her in
Appellant’s declaration filed in the dissolution action.
The complaint alleges that Appellant’s allegations were
false. According to the complaint, Respondent was a naïve 18-
year-old woman when she first met Appellant and Ex-Husband,
7
and Appellant seduced Respondent with “alcohol, fame, and
casual sex.” Appellant and Respondent allegedly had a
consensual long-term sexual relationship. Respondent claims
that she had sex with Ex-Husband only when Appellant invited
him to join them and that Appellant would sometimes record the
encounters. Respondent denied that she became pregnant with
Ex-Husband’s child and alleges that Appellant herself helped
Respondent to get an abortion when Respondent became
pregnant from another man. She claims that she received money
only as salary for her services as a nanny and denies that she
ever used any of Appellant’s money without Appellant’s consent.
She denies that she took the children against Appellant’s wishes
and claims instead that she took care of the children on a
planned trip while receiving conflicting instructions from
Appellant and Ex-Husband after the couple had been fighting.
Respondent claims that she initially resigned from her nanny
position because of the couple’s escalating arguments, was
rehired, and then was abruptly terminated from her employment
after being “caught in the middle of those arguments.” The
complaint characterizes Appellant’s allegations in her declaration
as falsely depicting Respondent as a “homewrecker” and
“extortionist” rather than a conscientious nanny and friend.
4. Appellant’s Anti-SLAPP Motion
Appellant filed an anti-SLAPP motion seeking dismissal of
each of Respondent’s claims. The motion argued that Respondent
could not show a probability that her claims will succeed on the
merits, as Appellant’s declaration was absolutely privileged
under section 47. She also argued that, even if the exception to
the privilege under section 47, subdivision (b)(1) was applicable,
the statements in her declaration were nevertheless privileged
8
because the decisions granting the restraining orders against Ex-
Husband and Respondent showed that there was probable cause
for Appellant’s allegations against Respondent.
Respondent’s opposition did not dispute that, because her
claims against Appellant are based on statements made during
litigation, they “arise from” protected activity under the first
prong of the anti-SLAPP procedure. (Code Civ. Proc., § 425.16,
subd. (b)(1).) However, Respondent argued that, under prong 2,
the evidence was sufficient to show that she would prevail on her
claims. Respondent argued that only a qualified litigation
privilege applied because her complaint challenges allegations
that Appellant made about a nonparty in her declaration “filed
in” her dissolution action, and the evidence was sufficient to show
that Appellant made those statements with malice and without
probable cause to believe their truth.
The trial court denied Appellant’s anti-SLAPP motion. The
court concluded that the express language of section 47,
subdivision (b)(1) covers Appellant’s statements made in her
declaration in the dissolution action. The court also found that,
based on the evidence Respondent provided, she had made a
“prima facie showing of facts, which if credited by the trier of fact,
would be sufficient to sustain a favorable judgment.” The trial
court rejected Appellant’s argument that the rulings granting the
restraining orders established probable cause for Appellant’s
allegations. The court concluded that those rulings were
temporary and preliminary, and therefore were not decisions “on
the merits” that could establish probable cause as a matter of
law.
9
DISCUSSION
As in the trial court, Appellant’s arguments on appeal are
limited to the second prong of the anti-SLAPP procedure.
Appellant argues that Respondent failed to show a probability
that she would prevail on her claims because the statements that
Respondent challenges in her lawsuit were made in a court filing
and therefore were absolutely privileged under section 47.
Alternatively, she argues that, even if only a qualified litigation
privilege applied to those statements under section 47,
subdivision (b)(1), the statements were privileged as a matter of
law because the trial courts’ prior decisions issuing the
restraining orders against Ex-Husband and Respondent showed
that Appellant had probable cause to believe the truth of the
challenged statements. We apply a de novo standard of review to
these issues. (Soukup v. Law Offices of Herbert Hafif (2006) 39
Cal.4th 260, 269, fn. 3.)
1. The Divorce Proviso Exception to the Litigation
Privilege Applies to Appellant’s Challenged
Statements Filed in Her Marital Dissolution
Action
The litigation privilege established by section 47,
subdivision (b) applies to any communication (1) made in 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. (Silberg, supra,
50 Cal.3d at p. 212.) Our Supreme Court has described the
privilege as “absolute in nature.” (Id. at p. 215.) It applies to all
10
torts except malicious prosecution. (Id. at pp. 215–216; Rubin v.
Green (1993) 4 Cal.4th 1187, 1194.)5
Thus, the litigation privilege is broad. Nevertheless, the
privilege is subject to specific statutory exceptions. As
mentioned, section 47, subdivision (b)(1) creates one such
exception for statements in pleadings or affidavits filed in
dissolution actions. Subdivision (b)(1) states in full: “An
allegation or averment contained in any pleading or affidavit
filed in an action for marital dissolution or legal separation made
of or concerning a person by or against whom no affirmative relief
is prayed in the action shall not be a privileged publication or
broadcast as to the person making the allegation or averment
within the meaning of this section unless the pleading is verified
or affidavit sworn to, and is made without malice, by one having
reasonable and probable cause for believing the truth of the
allegation or averment and unless the allegation or averment is
material and relevant to the issues in the action.” Whether
5 Moreover, a number of courts have held that, because of
the difficult and often bitter disputes in family law cases and the
sanctions that are available in those proceedings for meritless
filings, no malicious prosecution claim may arise from family law
motions. (See Bidna v. Rosen (1993) 19 Cal.App.4th 27, 32–37.)
Courts have applied that rationale to bar malicious prosecution
claims based upon applications for domestic violence and civil
harassment restraining orders, even when not filed in a
dissolution proceeding. (See S.A. v. Maiden (2014) 229
Cal.App.4th 27, 35–36; Siam v. Kizilbash (2005) 130 Cal.App.4th
1563, 1572–1573.) We discuss these cases further below in
connection with Appellant’s public policy arguments.
11
Appellant’s challenged statements were absolutely privileged
under section 47 depends upon the scope of this exception.
a. Prior precedent
Appellant argues that we are not painting on an empty
canvas in interpreting the divorce proviso because our Supreme
Court already defined its scope in Silberg. Appellant argues that
the divorce proviso should be interpreted narrowly, citing the
court’s observation in Silberg that the divorce proviso “may well
be an unnecessary anachronism.” (Silberg, supra, 50 Cal.3d at p.
216.) Amicus goes even further in arguing that in Silberg the
court “authoritatively construed the proviso’s language in a way
that excludes third-party abusers from its reach.” If that were
correct and our Supreme Court had already interpreted the
proviso in a manner that excluded the statements at issue in this
case, of course our task would be done. But the court’s decision in
Silberg did not include such a holding.
In Silberg, the court disapproved an “interest of justice”
exception to the litigation privilege that several Courts of Appeal
had adopted. (Silberg, supra, 50 Cal.3d at pp. 212–213.) That
exception excluded communications from the litigation privilege
if the communications were “not made for the purpose of
promoting the ‘interest of justice.’ ” (Id. at p. 212.)
In rejecting this exception, the court relied in part on the
language of the divorce proviso. The court noted that the divorce
proviso was added to section 47 in 1927 to provide that “an
allegation involving corespondents in pleadings and affidavits
filed in divorce actions is not privileged unless stated under oath,
without malice, and on reasonable grounds.” (Silberg, supra, 50
Cal.3d at p. 216.) The court reasoned that, by “negative
implication . . . statements published in proceedings other than
12
divorce actions may be malicious and still fall within the mantle
of protection provided by the privilege.” (Ibid.) Otherwise, the
“without malice” language would be “mere surplusage,” which the
Legislature presumably did not intend. (Ibid.) Thus, the court
concluded that the “ ‘without malice’ requirement applies only to
those allegations against corespondents published in the
pleadings and affidavits filed in dissolution proceedings.” (Ibid.)
While discussing section 47, subdivision (b)(1), the court observed
in a footnote that, “[u]nder our modern dissolution of marriage
laws, where fault is no longer a relevant issue, ‘the divorce
proviso’ may well be an unnecessary anachronism.” (Id. at
p. 216, fn. 5.)
The court in Silberg did not define the term “corespondent.”
(Silberg, supra, 50 Cal.3d at p. 216.) However, the court’s
observation that the divorce proviso may be an anachronism
suggests that the court intended to refer to the historical
meaning of the term. “Corespondent” was used historically in
divorce actions before the days of no-fault marital dissolution to
refer to a person who was accused of committing adultery with a
party as a ground for divorce. (See, e.g., Van Camp v. Van Camp
(1921) 53 Cal.App. 17, 19 [“the plaintiff first charged . . . that the
husband had committed adultery with a person who was named
as corespondent”].) Amicus argues that the court’s use of the
term means that the court intended to limit the scope of the
divorce proviso to persons falling within the historical definition
13
of that term. Amicus asserts that this scope is “largely obsolete”
and would not include Respondent.6
We do not agree with this interpretation. First, the court
in Silberg did not purport to make any holding on the scope of the
divorce proviso. It did not need to do so. The divorce proviso was
relevant in the court’s discussion only to show that, in actions
outside the scope of that proviso, there is no malice requirement.
The precise scope of the proviso was not important; its only
significance was to show that the malice requirement is limited to
the dissolution actions in which it applies. Thus, the court’s
description of the divorce proviso and its observation that the
proviso may be an anachronism were not part of its holding.
“[A]n opinion is only authority for those issues that it actually
considered or decided.” (Rosen v. State Farm General Ins. Co.
(2003) 30 Cal.4th 1070, 1076.)
Second, and consistent with the issue that it was
considering, the court in Silberg did not engage in any textual
analysis of section 47, subdivision (b)(1) or consider the
implications of its description of that provision. In particular, the
6 It is not clear why Amicus suggests that this scope, if
applicable, would be only “largely” obsolete. Under California’s
no-fault marital dissolution regime, the only two grounds for
dissolving a marriage are “[i]rreconcilable differences” or
“[p]ermanent legal incapacity to make decisions.” (Fam. Code,
§ 2310.) The grounds for dissolution must be “pleaded generally.”
(Ibid.) Thus, there is no longer any reason to identify a
corespondent to establish adultery as a ground for divorce. (See
Diosdado v. Diosdado (2002) 97 Cal.App.4th 470, 474 [“Fault is
simply not a relevant consideration in the legal process by which
a marriage is dissolved”].)
14
court did not explain whether it intended its use of the historical
term “corespondent” to have any effect on the current scope of the
exception. (Silberg, supra, 50 Cal.3d at p. 216.) The lack of
explanation is particularly notable, as the statute at the time (as
now) did not use the term “corespondent,” but provided more
broadly that the exception applied to “a person by or against
whom no affirmative relief is prayed in the action.” (See Stats.
1927, ch. 866, § 1.) We do not read into the court’s mere use of a
single word that does not appear in the statute an intent to
announce a binding interpretation, without explanation, of that
statute that would make the provision essentially irrelevant.
Third, to the extent that the court did understand the
divorce proviso to be an anachronism that no longer applied to
any pleading filed in a dissolution action, that view is no longer
tenable in light of subsequent legislative action. The Legislature
amended section 47, subdivision (b) effective September 1990,
seven months after the court filed its opinion in Silberg
identifying the divorce proviso as an “unnecessary anachronism.”
The 1990 amendment updated the language of section 47 by
redesignating the subdivisions and by substituting the phrase
“marital dissolution or legal separation” for “divorce or an action
prosecuted under section 137 of this code.” (See Stats. 1927, ch.
866, § 1; Stats. 1990, ch. 1491, § 1.) The Legislative Counsel’s
Summary Digest for the bill that included this amendment
described its purpose by explaining that “[e]xisting law specifies
that complaints and affidavits filed in actions formerly known as
divorce and separate maintenance are privileged only under
prescribed conditions. [¶] This bill would revise the above
references to correspond to current terminology, thus making
these provisions applicable to actions for marital dissolution and
15
legal separation.” (Legis. Counsel’s Dig., Assem. Bill No. 3765
(1989–1990 Reg. Sess.) Summary Dig., p. 601.)
Whatever the precise scope of the amended subdivision, we
presume that the Legislature’s decision to retain and apply the
exception to dissolution actions in 1990 rather than repealing it
means that it intended the provision to be something other than
a dead letter. As the court observed in Silberg, “we presume that
the Legislature does not engage in idle acts.” (Silberg, supra, 50
Cal.3d at p. 216.)
The court in Thornton v. Rhoden (1966) 245 Cal.App.2d 80,
which Amicus also cites, described the divorce proviso in passing
by explaining that “certain allegations made in divorce and
similar actions against corespondents are not privileged” unless
the conditions of the proviso are met. (Id. at p. 89.) However,
like our Supreme Court in Silberg, the court in Thornton did not
decide the scope of the divorce proviso and cited that provision
only as potentially relevant to interpreting the scope of the
litigation privilege where the proviso does not apply. That
decision is no more helpful than Silberg in interpreting the scope
of the divorce proviso itself.
Thus, in the absence of relevant precedent, we must
consider whether the scope of the divorce proviso includes
Appellant’s challenged statements that she filed in her
dissolution action. We begin, as we must, with the language of
the statute. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272
(Day).)
b. Statutory language
Appellant’s challenged statements fall within the express
scope of the divorce proviso. Respondent’s claims are based on
“allegation[s]” and “averment[s]” that Appellant made concerning
16
her in a declaration that was “filed in” Appellant’s dissolution
action. Appellant’s request for a restraining order against
Ex-Husband was filed under the same case number as her
dissolution action, and the restraining order was issued in that
action. Respondent was a nonparty in that proceeding who
neither sought nor was the subject of any “affirmative relief.”7
Despite the plain language of section 47, subdivision (b)(1),
Appellant argues that the divorce proviso does not apply here
because Appellant was “not seeking ‘marital dissolution or
separation’ ” in requesting a domestic violence restraining order,
and the Legislature did not intend to apply the divorce proviso to
proceedings for such a restraining order. The dispositive
response to this argument is that we are bound by the clear
language of the statute. If a statute is unambiguous, “then we
presume the lawmakers meant what they said, and the plain
meaning of the language governs.” (Day, 25 Cal.4th at p. 272.)
7 Amicus suggests that Appellant indirectly sought relief
against Respondent because Appellant requested an order
precluding Ex-Husband from contacting Appellant “directly or
indirectly,” which would include contact by him through
Respondent. The suggestion is creative but unpersuasive. The
order that Appellant sought in the dissolution action, and the
temporary restraining order that the court issued, did not direct
Respondent to do or not do anything. It was an order only
against Ex-Husband. Appellant independently sought a civil
harassment restraining order in a separate action against
Respondent, which is not at issue here. Thus, Respondent was
not a “person . . . against whom . . . affirmative relief [was]
prayed” in the dissolution action. (§ 47, subd. (b)(1).)
17
Civil Code section 47, subdivision (b)(1) is not ambiguous
about the judicial filings to which it applies. It applies to “any
pleading or affidavit filed in an action for marital dissolution or
legal separation.” (Civ. Code, § 47, subd. (b)(1), italics added.)8 It
does not say that it applies only when a particular type of relief is
sought. Nor does it exclude any category of filings. Orders in
marital dissolution actions typically provide many different types
of relief in addition to an order changing the status of the parties,
including orders concerning: (1) child custody; (2) child support;
(3) spousal support; (4) settlement of property rights; and
(5) attorney fees. (Fam. Code, § 2010.) In addition, during the
dissolution proceeding, a court may issue temporary orders
concerning custody and support, the restraint and disposition of
property, and the protection of the parties. (See Fam. Code,
§§ 754, 2045, 2047, 3022, 3060, 3600.) Thus, the category of
pleadings filed in a dissolution action is much broader than the
category of pleadings filed for a change in marital status. A
statute specifying the former category cannot reasonably be read
to include only the latter.
Because the language of the statute is clear, we need not
resort to legislative history or policy considerations as a guide to
interpret the statute. We nevertheless address Appellant’s
arguments on these topics to “ ‘test our construction against those
extrinsic aids that bear on the enactors’ intent.’ ” (Day, supra, 25
Cal.4th at p. 274, quoting Powers v. City of Richmond (1995) 10
Cal.4th 85, 93.)
8 A declaration is, of course, the functional equivalent of an
affidavit. (Code Civ. Proc., § 2015.5.)
18
c. Legislative history
Appellant argues that the Legislature did not intend the
divorce proviso to apply to requests for domestic violence
restraining orders because (1) the Family Code makes restraining
orders available in circumstances beyond dissolution actions, and
(2) the Legislature established the procedure for obtaining such
orders well after the divorce proviso was enacted. Neither point
is persuasive in light of the broad language of the proviso.
Just as dissolution actions typically include requests for
many different types of relief, many of the types of relief that are
available in dissolution actions are also available in other
contexts. For example, child custody and child support awards
may be sought in an action separate from a dissolution
proceeding (Fam. Code, §§ 3120, 4000); parties in civil actions
may obtain preliminary injunctions to avoid waste or irreparable
injury (Code Civ. Proc., § 526, subd. (a)(2)); creditors may obtain
orders against the disposition of assets (Civ. Code, § 3439.07,
subd. (a)(3)(A)); and motions for attorney fees are available in a
variety of proceedings, including anti-SLAPP motions (Code Civ.
Proc., § 425.16, subd. (c)). Thus, the fact that domestic violence
restraining orders are available both in dissolution actions and in
a separate action is not unique.9 Reading Civil Code section 47,
subdivision (b)(1) to apply only to relief that is solely available in
9 Nor does the fact that a request for a restraining order
can be filed in a separate action mean that such a request that is
filed in a dissolution action should be considered somehow
separate from that action. As the trial court observed, if that
were the case, motions or requests for injunctions filed in civil
cases would all be considered separate actions.
19
a dissolution action would exclude many, if not most, of the
pleadings that are “filed in” such an action. There is no reason to
believe that the Legislature intended such a narrow reading of
the broad language it adopted in the statute.
Appellant’s arguments concerning the original purpose for
the divorce proviso do not change this conclusion. Appellant cites
scholarly commentary suggesting that the proviso was adopted to
avoid “ ‘legal blackmail’ ” through unfounded allegations of
adultery against third parties in divorce proceedings. (See
Friedman, Guarding Life’s Dark Secrets: Legal and Social
Controls Over Reputation, Propriety, and Privacy (Stanford U.
Press 2007) p. 290, n. 48.) Presumably the defamatory effects of
such unfounded allegations would be just as severe whether they
appeared in the original complaint seeking a divorce based upon
the fault of a spouse or in some other pleading filed during the
proceeding, such as a motion for child custody or a restraining
order.
Appellant’s argument that the procedure for obtaining
domestic violence protective orders did not exist in 1927 when the
divorce proviso was originally enacted does not take account of
the Legislature’s 1990 amendment. A procedure for obtaining
domestic violence restraining orders did exist when the
Legislature amended the divorce proviso in 1990. Indeed, in
September 1990, the same month that the Legislature amended
the divorce proviso, it also enacted substantive changes to the
procedures for obtaining a domestic violence restraining order.
(See Stats. 1990, ch. 752.) If the Legislature wished to exclude
applications for a domestic violence restraining order from the
scope of section 47, subdivision (b)(1), it could have done so
expressly by amendment.
20
As discussed above, the Legislature’s 1990 amendment to
the divorce proviso also precludes any argument that the proviso
no longer applies because its original purpose has become
irrelevant. The Legislature’s decision to retain and amend the
provision in 1990 requires us to presume that it has some current
application, particularly as the amendment occurred after the
court observed in Silberg that the marriage proviso “may well be
an unnecessary anachronism.”10 (Silberg, supra, 50 Cal.3d at
p. 216, fn. 5.) As our Supreme Court has explained: “Statutes
are to be interpreted by assuming that the Legislature was aware
of the existing judicial decisions. [Citation.] Moreover, failure to
make changes in a given statute in a particular respect when the
subject is before the Legislature, and changes are made in other
respects, is indicative of an intention to leave the law unchanged
in that respect.” (Kusior v. Silver (1960) 54 Cal.2d 603, 618.)
Thus, the legislative history of the divorce proviso does not
support a reading that would exclude Respondent from its scope.
10 Even if we were to read the proviso as limited to
allegations against the modern version of a corespondent, that
limitation would not help Appellant. As this case illustrates,
even under a no-fault marital dissolution regime a party seeking
dissolution can still accuse his or her spouse of adultery. A third
party who is accused of participating in such adultery is the
closest contemporary analog to a corespondent. Respondent fits
that definition. Appellant’s allegations in the dissolution action
that Respondent engaged in an extramarital sexual relationship
with Ex-Husband are among the statements that Respondent
claims were defamatory.
21
d. Policies underlying domestic violence
restraining orders
Appellant and Amicus present various reasons why reading
the divorce proviso narrowly to exclude declarations in support of
restraining orders would be consistent with the policies and goals
of the statutory scheme governing domestic violence restraining
orders. For example, they argue that applying the divorce
proviso to pleadings seeking domestic violence restraining orders
in dissolution actions would: (1) create inconsistency with cases
holding that family law motions, including motions for
restraining orders, are immune even from malicious prosecution
actions;11 (2) discourage restraining order applications by victims
11 Appellant goes even further in suggesting that such
cases are controlling here. They are not. The cases that
Appellant cites considered whether an action for malicious
prosecution may be based upon family law motions. They did not
concern the exception to the litigation privilege in section 47,
subdivision (b)(1). (See Bidna v. Rosen, supra, 19 Cal.App.4th at
p. 37; S.A. v. Maiden, supra, 229 Cal.App.4th at pp. 42–43; Siam
v. Kizilbash, supra, 130 Cal.App.4th at p. 1572.) Cases that
Appellant cites concerning application of the “absolute” litigation
privilege to family law cases are similarly irrelevant, as none of
those cases involved a person “by or against whom no affirmative
relief is prayed in the action.” (§ 47, subd. (b)(1); Gootee v.
Lightner (1990) 224 Cal.App.3d 587, 589 [litigation privilege
applied to testimony and related preparatory activities by
psychologist on a child custody issue]; Green v. Uccelli (1989) 207
Cal.App.3d 1112, 1124 [claims against attorney in a dissolution
action concerning litigation conduct]; Jacob B. v. County of
Shasta (2007) 40 Cal.4th 948, 956 [litigation privilege applied to
letter concerning past alleged abuse affecting visitation rights; no
22
of third parties, whom abusers commonly use to further their
control over their victims; (3) provide a perverse encouragement
for abusers to use third parties in their abusive schemes;
(4) increase the use of defamation claims as a tactic of abuse;
(5) unfairly distinguish between unmarried and married victims
of domestic abuse when they seek a restraining order; and
(6) create arbitrary differences between counties that require
requests for restraining orders to be filed in pending dissolution
actions and those that permit such requests to be filed in
separate proceedings even if a dissolution action is pending.
While many of these arguments articulate persuasive
policy goals, whether this court believes that those goals are
important is not the issue. Appellant has not raised any equal
protection or other constitutional challenge to the application of
the divorce proviso to her challenged statements. Our review is
therefore limited to interpreting the statute.
In doing so, this court “ ‘has no power to rewrite the statute
so as to make it conform to a presumed intention which is not
expressed.’ ” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 75,
quoting California Teachers Assn. v. Governing Bd. of Rialto
Unified School Dist. (1997) 14 Cal.4th 627, 632–633.) Where the
statutory language is clear, we may not use our own policy
judgments to justify a contrary interpretation. “ ‘The plain
discussion of divorce proviso]; Rader v. Thrasher (1972) 22
Cal.App.3d 883, 888–889 [divorce proviso did not apply to alleged
defamatory statements about a lawyer in dissolution action, as
the lawyer “was not only seeking affirmative relief for his client
in the various actions involved, but indirectly for himself as well
in the form of attorney’s fees”].)
23
language of the statute establishes what was intended by the
Legislature.’ ” (Jarrow Formulas, Inc. v. LaMarche (2003) 31
Cal.4th 728, 735 [plain language of the anti-SLAPP statute
included malicious prosecution actions within its scope], quoting
People v. Statum (2002) 28 Cal.4th 682, 690.) The plain language
of section 47, subdivision (b)(1) establishes that only a qualified
privilege applies to statements in the declaration that Appellant
filed in her dissolution action, regardless of the policy concerns
that she and Amicus raise.
Citing Cassell v. Superior Court (2011) 51 Cal.4th 113,
Appellant asserts that, despite the general principle that the
plain language of a statute is controlling, we must avoid a “literal
construction [that] would produce absurd results.” (Id. at p. 124.)
But this is not one of the rare cases in which applying the literal
terms of a statute would subvert clear legislative intent. “To
justify departing from a literal reading of a clearly worded
statute, the results produced must be so unreasonable the
Legislature could not have intended them.” (In re D.B. (2014) 58
Cal.4th 941, 948, citing Cassell, at p. 136.) A court may not
disregard the plain language of a statute just because the
consequences of a literal interpretation are “troubling” or because
the court believes that a different approach would be better.
(D.B., at p. 948.)
The Legislature could have made rational distinctions
concerning the scope of the litigation privilege between pleadings
filed in dissolution actions and in separate proceedings for
domestic violence restraining orders. The Legislature might have
concluded that dissolution proceedings are more likely to involve
allegations of adultery or other potentially defamatory assertions
about third parties who have allegedly interfered with the
24
marital relationship. Dissolution proceedings also may be more
likely to involve disputes over custody, support, and property in
which third parties could be involved. Pleadings in support of
restraining orders in dissolution actions therefore might be more
likely to contain tangential or gratuitous allegations against
third parties as part of the strategy of litigating the issues
surrounding the marital dissolution.12
We do not suggest that the Legislature actually had this
rationale in mind in declining to amend or repeal the divorce
proviso. But the decision to give effect to the plain language of
section 47, subdivision (b)(1) does not lead to absurd results. If
the Legislature believes that the divorce proviso is no longer
necessary, or that it improperly interferes with policies
underlying proceedings for restraining orders, it is free to change
the language of the provision or repeal it entirely.
12 Indeed, Respondent alleges such a strategic purpose in
this case. Respondent claims that Appellant “needlessly and
gratuitously” made the allegedly defamatory accusations against
her in the dissolution action “as a preemptive strike to discredit
any potential testimony from [Respondent] during the divorce
and child custody proceedings.” In ruling that Respondent had
sufficiently shown a probability of success on her claims, the trial
court found that a reasonable jury could conclude that Appellant
made the allegedly false accusations against Respondent out of
such a motive.
25
2. The Prior Rulings Granting the Temporary
Restraining Orders do not Establish Probable
Cause for Appellant’s Challenged Statements as
a Matter of Law
Appellant argues that the two judges’ decisions granting
her requests for temporary restraining orders in the dissolution
action and in her separate civil harassment action against
Respondent established as a matter of law that she had
“reasonable and probable cause for believing the truth of” the
allegations she made about Respondent. Appellant analogizes to
the doctrine applied in malicious prosecution actions commonly
called the “ ‘interim adverse judgment rule.’ ” (Parrish v. Latham
& Watkins (2017) 3 Cal.5th 767, 771 (Parrish).
The interim adverse judgment rule operates to preclude a
malicious prosecution claim when a ruling in the prior action on
which the claim is based shows that the defendant (i.e., the
former plaintiff) had probable cause to bring that action. The
elements of a malicious prosecution claim include proof that the
defendant “initiated or maintained” a previous action “without
probable cause.” (Parrish, supra, 3 Cal.5th at p. 775.) Under the
interim adverse judgment rule, “if an action succeeds after a
hearing on the merits, that success ordinarily establishes the
existence of probable cause . . . even if the result is overturned on
appeal or by later ruling of the trial court.” (Id. at p. 771.) The
rule applies to the successful defense of a summary judgment
motion by the former plaintiff (and current defendant) in the
prior action (Wilson v. Parker, Covert & Chidester (2002) 28
Cal.4th 811, 823–824 (Wilson); a ruling denying a motion for
nonsuit, if based on an evaluation of the evidence (Clark v.
Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150,
26
183–184); and victory after trial, even if later overturned on
appeal (Bergman v. Drum (2005) 129 Cal.App.4th 11, 21).
We agree with Appellant that the rationale underlying the
interim adverse judgment rule is potentially relevant to
determining whether a ruling in a prior case established the
probable cause required under section 47, subdivision (b)(1). The
interim adverse judgment rule is based on the principle that
“[c]laims that have succeeded at a hearing on the merits, even if
that result is subsequently reversed by the trial or appellate
court, are not so lacking in potential merit that a reasonable
attorney or litigant would necessarily have recognized their
frivolousness.” (Wilson, supra, 28 Cal.4th at p. 818.) Similarly, if
a defendant obtained relief or otherwise prevailed at a hearing on
the merits in prior litigation based upon statements that are
challenged as defamatory, the prior ruling might show that the
defendant at least had probable cause to make the statements.13
However, the analogy is not perfect. A malicious
prosecution action will fail if the defendant had probable cause to
bring a claim in the prior action. In contrast, the litigation
privilege applies under section 47, section (b)(1) only if a
defendant had probable cause for “believing the truth of” the
13 This assumes that the existence of probable cause under
section 47, subdivision (b)(1) is an objective question rather than
subjective, and, like the probable cause at issue in a malicious
prosecution claim, may be determined as a matter of law based
on “ ‘the facts known to the defendant.’ ” (Parrish, supra, 3
Cal.5th at p. 776, quoting Sheldon Appel Co. v. Albert & Oliker
(1989) 47 Cal.3d 863, 878.) For the reasons discussed below, we
need not decide that issue.
27
allegations or averments at issue. Thus, while prior success in
prosecuting a particular claim may establish probable cause for
such a claim as a matter of law, it does not necessarily establish
probable cause to believe the truth of every allegation supporting
the claim.
We need not decide whether, and how, the interim adverse
judgment rule applies to proof of probable cause as a matter of
law under section 47, subdivision (b)(1). Even assuming that, in
some circumstances, a prior ruling on the merits can establish
probable cause for the truth of particular allegations, the prior
rulings granting the temporary restraining orders at issue here
were too opaque to fill that role.
In the malicious prosecution context, our Supreme Court
has observed that a prior ruling cannot establish probable cause
if the reasons for the ruling are uncertain. In Wilson, the court
held that a prior ruling denying an anti-SLAPP motion may
establish probable cause for the plaintiff’s action under the
interim adverse judgment rule.14 However, the court explained
that a ruling on an anti-SLAPP motion that was based on
procedural or technical grounds, or on the ground that the action
did not arise from a protected activity under the first prong of the
14 A subsequent amendment to the anti-SLAPP statute
abrogated this holding by providing that a court’s ruling on an
anti-SLAPP motion finding a probability that the plaintiff will
prevail on its claims is not admissible, and that “no burden of
proof or degree of proof otherwise applicable shall be affected by
that determination . . . in any subsequent proceeding.” (Code
Civ. Proc., § 425.16, subd. (b)(3); Hutton v. Hafif (2007) 150
Cal.App.4th 527, 547–548.)
28
anti-SLAPP procedure, or “for reasons that cannot be
determined” would say nothing about the action’s potential merit
and would not establish probable cause. (Wilson, supra, 28
Cal.4th at p. 823; cf. Fleishman v. Superior Court (2002) 102
Cal.App.4th 350, 358–359 [the interim adverse judgment rule
would not bar a malicious prosecution claim against a former
plaintiff if a prior ruling established only “probable cause for
some but not all” of the former plaintiff’s causes of action].)
For the reason discussed above, the potential for
uncertainty about the scope of a prior ruling is even greater in a
case such as this, which involves challenges to particular
statements, than in a malicious prosecution case, which involves
a broader challenge to a claim. In a defamation case or similar
action challenging particular allegations, it is not enough to
discern from a prior ruling whether the court found that a claim
had sufficient merit to proceed. One must also determine
whether the court made favorable findings about each challenged
allegation underlying the claim.
The difficulty here is similar to the problem that can arise
in determining whether to give collateral estoppel effect to a prior
judicial decision.15 Collateral estoppel applies only if an issue
15 The requirements to establish collateral estoppel are
relevant only by analogy. Our Supreme Court has explained that
the interim adverse judgment rule is not part of the “doctrine of
res judicata or any of its branches,” but is derived from the
definition of probable cause. (Wilson, supra, 28 Cal.4th at
p. 825.) The interim adverse judgment rule does not operate to
preclude relitigation of an issue of fact, but simply to determine
whether a prior judicial ruling establishes probable cause as a
29
was “actually litigated and necessarily decided” in a prior case.
(DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825.) If
the record does not permit a conclusion that an issue was
necessarily decided, the prior decision cannot be given preclusive
effect. (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1197–
1198 [record from a prior action that resulted in the dismissal of
a quiet title claim against a party did not show that the party
successfully established his own right to title].)
The record in this case does not contain sufficient
information to discern which, if any, of Appellant’s challenged
allegations the court found had merit when the temporary
restraining orders were issued. Appellant’s statements in
support of the restraining order in the dissolution action (which
include all the statements directly at issue in this action)
primarily concerned Ex-Husband, who was the person that
Appellant sought to restrain. Those statements included direct
allegations of abuse by Ex-Husband that could have been
sufficient in themselves to support the judge’s decision to issue a
temporary restraining order against Ex-Husband without ever
considering Appellant’s allegations about Respondent.
Although Appellant sought a restraining order against
Respondent in the civil harassment action, the judge’s ruling in
that action nevertheless does not reveal what findings, if any, the
judge made about Appellant’s particular allegations in support of
matter of law. (Ibid.) Nevertheless, the problem here—
determining whether a ruling in a prior case decided a particular
issue—is the same problem that can arise in collateral estoppel
cases.
30
her application. Along with standard personal conduct and stay-
away orders, Appellant sought—and the court granted—an order
giving Appellant access to a storage facility where she alleged her
personal property was present and prohibiting Respondent from
removing property from that storage facility. Appellant
supported her request with a number of detailed allegations,
some of which were the same or similar to her allegations in the
request filed in the dissolution action that are at issue in this
case (e.g., allegations concerning Respondent’s sexual
relationship with Ex-Husband and Ex-Husband’s alleged
extravagant payments to Respondent). However, the judge need
not have relied on those allegations in deciding to grant the
temporary restraining order. The judge could have issued the
order based simply on Appellant’s allegations that Respondent
had become verbally abusive and was in control of Appellant’s
personal property.16
16 Because the parties’ briefs did not directly address this
issue, pursuant to Government Code section 68081, we invited
the parties to submit supplemental letter briefs addressing
whether the reasons for the trial court’s prior decisions granting
the restraining orders can “be determined with sufficient
certainty to permit those rulings to establish the existence of
probable cause as a matter of law for the statements by
[Appellant] that are the subject of [Respondent’s] lawsuit.” Along
with her letter brief, Appellant filed a request for judicial notice
of some additional documents from the trial court’s file in the
restraining order proceedings. We grant the motion. However,
these additional documents do not provide any further
information concerning the specific basis for the rulings. The
documents include court orders on procedural issues that
31
Thus, we conclude that the record does not support a
finding that the judges in the dissolution action or the civil
harassment action made any ruling that could establish probable
cause for Appellant’s challenged statements as a matter of law.
Other than legal arguments concerning the litigation
privilege and the interim adverse judgment rule, Appellant does
not raise any other challenge to the trial court’s finding that
Respondent supported her opposition to Appellant’s anti-SLAPP
motion with sufficient evidence showing a probability that she
will prevail on her claims. (Code Civ. Proc., § 425.16, subd.
(b)(1).) We therefore affirm the trial court’s ruling denying
Appellant’s anti-SLAPP motion. In light of our disposition, we
need not decide whether the trial court was correct in ruling that
the prior decisions granting the restraining orders were not
rulings “on the merits.”17
continued the restraining orders in force pending further
hearings. None of these procedural orders addressed the bases
for the initial decisions to issue the restraining orders.
17 The preliminary nature of the restraining orders would
not necessarily preclude a finding that they established probable
cause as a matter of law. In Wilson, our Supreme Court cited
with approval Butler v. Ratner (1994) 619 N.Y.S.2d 871, which
held that the issuance of a temporary restraining order “creates
[a] presumption of probable cause” even though later vacated by
an appellate court. (Wilson, supra, 28 Cal.4th at p. 822, fn. 7,
citing Butler at pp. 873–874.) In Fleishman v. Superior Court,
supra, 102 Cal.App.4th 350, Division Six of this district held that
the interim adverse judgment rule could properly be applied
based on a prior ruling granting a preliminary injunction, even if
the party opposing the preliminary injunction motion had been
32
3. Respondent is not Entitled to Attorney Fees
Respondent does not challenge the trial court’s ruling
denying her attorney fees for successfully opposing Appellant’s
anti-SLAPP motion below. However, she argues that Appellant’s
appeal was frivolous and that Respondent is therefore entitled to
her fees on appeal.
We conclude that Appellant’s appeal was not frivolous or
solely intended to cause unnecessary delay. (Code Civ. Proc.,
§ 425.16, subd. (c)(1).) Her appeal raises colorable issues. We
therefore deny Respondent’s request for attorney fees on appeal.
“erroneously precluded from presenting evidence to the contrary.”
(Id. at p. 357.) However, whether application of the interim
adverse judgment rule would be proper where, as here, a prior
preliminary ruling was issued on an ex parte basis without any
opportunity to oppose the motion is another question, which we
need not now decide.
33
DISPOSITION
The trial court’s order denying Appellant’s anti-SLAPP
motion is affirmed. Respondent is entitled to her costs on appeal.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
34