Judge Lisa K. Sepe-Wiesenfeld, Case Number: 24SMCV04245, Date: 2024-11-22 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 24SMCV04245, Date: 2024-11-22 Tentative Ruling

Defendant Melanie Shornick (“Defendant”) moves the Court for an order striking Plaintiff Jing Yang (“Plaintiff”)’s complaint against her pursuant to Code of Civil Procedure section 425.16 on the ground that the claims arise from protected activity, the litigation privilege bars the entire action, and Plaintiff cannot prevail on any claim set forth in her complaint.

Third party Xiaofun Sun and third party Yang Wang were married on August 13, 2016, and separated on February 14, 2018. (Compl. ¶¶ 7-8.) On April 22, 2018, Yang filed a petition for dissolution of the marriage with Sun (Los Angeles Superior Court Case No. 18PSFL00379 (Yang v. Sun)). (Compl. ¶ 9.) In 2019, Sun entered into a romantic relationship with third party Yan Luan, and the relationship ended in 2021. (Compl. ¶¶ 11-12.) On September 7, 2023, text messages were received by Yang and Defendant Melanie Shornick (“Defendant”) stating that Plaintiff Wang, who acted as counsel in the family law action, had engaged in a sexual relationship with Sun, Sun had wired money from a trust account to Plaintiff’s business account for purchase of a vehicle that could be hidden as an asset, and Plaintiff and Sun had gone to Hawaii together in July 2023. (Compl. ¶¶ 13-14.) Defendant purportedly obtained additional information about Plaintiff’s and Sun’s respective bank accounts, but Defendant stated that she not sought access to Plaintiff’s personal bank account. (Compl. ¶¶ 18-20.) Plaintiff alleges that the text messages came from third party Luan, which Defendant knew, and based on those text messages, Defendant served a deposition subpoena to Defendant Chase Bank for the production of business records without giving notice to Plaintiff, thereby allowing Defendant opportunity to obtain Plaintiff’s confidential bank account records. (Compl. ¶¶ 24-26.) Plaintiff alleges that her personal information has been found on “Dark Web” websites. (Compl. ¶ 27.) As to Defendant Shornick, Plaintiff brings causes of action for violation of right of privacy, specifically the intrusion into private affairs and public disclosure of private facts, intentional infliction of emotional distress, and negligence.

A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

Accordingly, section 425.16 posits a two-step process for determining whether an action is a strategic lawsuit against public participation (SLAPP). First, the Court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (See Code Civ. Proc., § 425.16, subd. (b)(1).) “A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in [section 425.16,] subdivision (e).” (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043.) Those categories include “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e).) If defendant makes a threshold showing that the challenged cause of action is one arising from protected activity, the burden shifts to the plaintiff to establish a likelihood of prevailing on the complaint. (See Code Civ. Proc., § 425.16, subd. (b)(1).)

To invoke Code of Civil Procedure section 425.16, a defendant need only demonstrate that a suit arises from the defendant’s exercise of free speech or petition rights. (See Code Civ. Proc., § 425.16, subd. (b); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) This is determined by “the gravamen or principal thrust of the action.” (See In re Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) “In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.) “In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).)

Code of Civil Procedure section 425.16, subdivision (e)(1), states that “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law” is considered protected activity under the anti-SLAPP statute. “Under the plain language of section 425.16, subdivision (e)(1) and (2), as well as the case law interpreting those provisions, all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute.” (Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-480.) Here, the conduct at issue is the purported access to Plaintiff’s bank account records and disclosure of that information pursuant to a subpoena issued to Chase Bank for the production of business records of Plaintiff’s bank accounts. (Compl. ¶ 26.)

The Court finds that the issuance of a subpoena constitutes communicative activity performed by an attorney as part of her representation of a client in a judicial proceeding. Plaintiff argues that such conduct is not protected in an instance of litigation abuse, i.e., where the conduct was not actually part of the litigation and was outside the scope of the representation. Put simply, Plaintiff has not sufficiently alleged any conduct outside of Defendant’s representation in the marriage dissolution act, obtaining bank records pursuant to a subpoena issued in that action, and publication of the information in court filings. Therefore, the Court finds that Defendant has satisfied the first prong of the anti-SLAPP statute as to Plaintiff’s claims, as Plaintiff’s claim arises from protected activity.

If the defendant makes a threshold showing that the challenged cause of action is one arising from protected activity, the burden shifts to the plaintiff to establish a likelihood of prevailing on the complaint. (See Code Civ. Proc., § 425.16, subd. (b)(1).) “In order to establish a probability of prevailing on the claim, a plaintiff responding to an anti-SLAPP motion must state and substantiate a legally sufficient claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, superseded by statute on other grounds as noted in Hutton v. Hafif (2007) 150 Cal.App.4th 527, 547, citation, quotation marks, and brackets omitted.) To do so, “the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Ibid., quotation marks omitted.) In considering whether a plaintiff’s claim has merit, “the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant,” and while “the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.” (Ibid., emphasis in original.)

Civil Code section 47, subdivision (b), makes privileged any statements made during judicial proceedings, which “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.) Such communications are protected by the litigation privilege for “all torts except malicious prosecution.” (Ibid.) As stated above, the complaint makes clear that Plaintiff takes issue with the issuance of a subpoena during litigation. Defendant also provides evidence that all communications alleged occurred in the course of the dissolution proceeding, Defendant was counsel of record for Yang in the dissolution proceeding, the deposition subpoena was issued as authorized by code at a time when issues of a financial nature were pending trial, and the issues of child support and attorney fees were at issue when the conduct alleged in the complaint occurred. (See Mot., Shornick Decl.) It follows that the claims are barred by the litigation privilege.

Even if the claims were not barred, the Court lacks a basis to conclude that Plaintiff can prevail on her claims as alleged. Plaintiff’s claims are for violation of right of privacy, specifically the intrusion into private affairs and public disclosure of private facts, intentional infliction of emotional distress, and negligence. Plaintiff takes issue with Defendant obtaining access to her bank records, but, as stated above, the records were obtained during the course of litigation. As to allegations about publication, Plaintiff states only that the information obtained was published when Defendant “filed various pleadings with the Court in the Family Law Case” (Compl. ¶ 26), again making clear that the claims relate to conduct during litigation. There are no other facts about publication to others. It follows that the trier of fact could not conclude that Defendant is liable for violation of Plaintiff’s right to privacy, intentional infliction of emotional distress, and negligence where the records were obtained to learn information at issue in litigation, and the information was purportedly communicated as part of the litigation process. Further, the evidence provided in opposition to the motion is mere opinion as to whether the subpoena was necessary. Thus, the Court finds that Plaintiff cannot demonstrate a likelihood of prevailing on her claims. Accordingly, Defendant Melanie Shornick’s Motion to Strike (Anti-SLAPP) is GRANTED. Defendant Melanie Shornick shall prepare, serve, and submit a proposed judgment as per statute.

Code of Civil Procedure section 425.16, subdivision (c), provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” Under section 425.16, an award of fees and costs is mandatory. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) In that Defendant is the prevailing party, she is entitled to her reasonable attorney fees and costs, the amount of which shall be determined upon Defendant filing a noticed motion for attorney fees and memorandum of costs.