Judge: James A. Mangione, Case: 37-2023-00018233-CU-NP-CTL, Date: 2023-09-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 20, 2023

09/21/2023  09:00:00 AM  C-75 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:James A Mangione

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Civil - Unlimited  Non-PI/PD/WD tort - Other Demurrer / Motion to Strike 37-2023-00018233-CU-NP-CTL DURAN VS CLARENCE [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Craig Andrew Clarence's Demurrer is sustained without leave to amend.

Plaintiff's causes of action for abuse of privilege and intentional infliction of emotional distress are barred by the litigation privilege. This privilege is applicable to all torts except malicious prosecution, and '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.' (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) Here, Defendant was testifying as a witness in a divorce proceeding regarding alleged infidelity by Plaintiff's wife. Although Plaintiff contends that Defendant was simply a mouthpiece, the causes of action asserted against him arise from the statements he made to the Court in connection with the divorce proceeding.

Furthermore, the Court finds that Plaintiff's argument that the communications were not 'permitted by law' is akin to the rule rejected by the California Supreme Court that 'an otherwise privileged communication is not privileged under [Civil Code § 47(b)] unless made for the purpose of promoting the 'interest of justice.'' (Id. at 218.) Therefore, Defendant's statements satisfy the test for privilege and the demurrer on these causes of action is sustained without leave to amend.

Plaintiff's cause of action for concealment is similarly barred by the litigation privilege. Plaintiff argues this claim is based on Defendant's attempts to hide his participation in the group chat rather than any communication made by him. However, 'the litigation privilege extends to noncommunicative acts that are necessarily related to the communicative conduct.' (Mireskandari v. Gallagher (2020) 59 Cal.App.5th 346, 369.) 'To show that the litigation privilege does not apply, the burden is on the plaintiff to demonstrate that an independent, noncommunicative, wrongful act was the gravamen of the action.' (Id.) Plaintiff cannot make this showing because participating in the group chat is not an independent wrongful act; it only becomes a wrongful act through the use of the chat group to coach false testimony.

Therefore, Defendant's participation in the group chat is privileged because it is 'necessarily related' to his privileged communication. The demurrer on the cause of action for concealment is sustained without leave to amend.

All requests for judicial notice are granted.

The minute order is the order of the Court.

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