FAMILY LAW, MALICIOUS PROSECUTION. ABUSE OF PROCESS, AND DEFAMATION

The anti-SLAPP statute is constantly venturing into more and more civil practice areas.   Family law is no exception.   First, there are special rules that apply to speech and litigation based claims arising from family law and civil harassment proceedings.   First and foremost is the Bidna v. Rosen (1993) 19 Cal.App.4th 27, 34, 37 rule:  which created "an absolute bar of malicious prosecution claims based on any kind of family law motion or OSC.... no California case has yet to extend the malicious prosecution tort to family law actions."   Under Siam v. Kizilbash (2005) 130 Cal.App.4th 1563 the court extended the ban on malicious prosecutions actions in family law to cases arising from prior unsuccessful petitions for civil harassment injunctions under CCP 527.6.  A year later, Robinzine v. Vicory (2006) 143 Cal.App.4th 1416 extended the ban to petitions for workplace harassment injunctions under CCP 527.8.  Finally, Nakumura v. Parker (2007) 156 Cal.App.4th 327, by analogy, extended the Siam/Robinzine ban on malicious prosecution actions to domestic violence restraining orders under the DPVA at FC 6200 et seq.

What would SLAPP and litigation privilege jurisprudence be without exceptions and exceptions to exceptions?   Yet there is hope for you plaintiffs who want to sue your ex wife, girlfriend, or neighbor or any voluntary reporter who makes a knowingly false child abuse report to a mandated reporter or mandated reporting agency including the police, therapist, teacher or principal under PC 11172(a).  If a mandated reporter makes such a claim it is absolutely privileged from liability from any action under the litigation privilege and from any malicious prosecution action.  Siam, supra.  But the Legislature struck a balance by allowing a party wrongly accused of child abuse to file any claim for damages, except malicious prosecution, against a voluntary reporter who makes a "knowingly false" child abuse report.  Siam, supra.  See also Begier v. Strom (1996) 46 Cal.App.4th 877, 883-885.   The Legislative History states "that providing only qualified immunity to voluntary reporters `is necessary to prevent a vindictive former spouse or neighbor [or girlfriend] from making a knowingly false report [of child abuse]." (AB 2497; SB 781].   But yet there is one more exception to the qualified immunity rule for voluntary reporters of child abuse - that is where the child victim, him/herself, makes a voluntary report of child abuse.  Chabak v. Monroy (2007) 154 Cal.App.4th 1502,     The victim of the alleged abuse who also reports it is absolutely immune from any and all liability for making the report under CC 47(b) and from malicious prosecution liability under Siam and Chabak.

The next tag along tort we often see arising from family proceedings is the abuse of process tort, which is often conflated with malicious prosecution.   This is a fundamental mistake that many attorneys make as malicious prosecution is a separate and distinct tort form abuse of process in terms of the activity which it targets and the distinct privilege defenses that may apply to each.  Bidna, supra, The former may ordinarily be predicated on the alleged improper initiation and/or continuance of a prior judicial or other quasi-judicial proceeding.   Jarrow Formulas v. La Marche (2003) 31 Cal.4th 728 and Zamos v. Stroud (2004) 32 Cal.4th 958.  Abuse of process lies for an abuse or misuse of the court's process once in a lawsuit and only after the court issues its process.   So any abuse of process claim based on the alleged improper filing of a motion, OSC, or TRO or other application with the court will ordinarily be barred by the litigation privilege of CC 47(b) to the extent the gravamen of the actions is based on communicative conduct even if also connected to other noncommunicative acts. Rusheen v. Cohen (2006) 37 Cal.4th 1048.   Abuse of process, unlike malicious prosecution, does not lie for the wrongful initiation or continuance of prior judicial proceedings while malicious prosecution does not lie for subsidiary procedural actions within a lawsuit like the filing of an application for a TRO.  Begier, supra.  Moreover, abuse of process may only be based on the misuse of the "court's" or "judicial" process not than of an administrative or quasi-judicial tribunal whereas malicious prosecution actions are generally not so limited.  Unlike abuse of process, malicious prosecution is the only tort exempt from the litigation privilege of CC 47(b). Jarrow, supra; Silberg v. Anderson (1990) 50 Cal.3d 205.

The classic example of an actionable abuse of process action is illustrated by the following example: W goes into family court to get a domestic violence restraining order and the court grants it.  Note this is the first prerequisite - the court must have issued an order pursuant to its processes.  Then, after the RO is issued by the court, W goes out and intentionally places herself within 300 feet of H in order to get him thrown in jail and gain an undue advantage in the ongoing child custody proceedings or just to be vindictive and retaliate against H.   This is a true abuse or process that is based solely on W's noncommunicative intentional act of moving her body into a location which will result in H's violation of the restraining order.   Because it is based on purely on noncommunicative activity, the litigation privilege will not apply. Silberg v. Anderson (1990) 50 Cal.3d 205.  

Now that we have seen that pleading derivative tort causes of action arising from prior family law, civil harassment, and child abuse proceedings is like traversing a minefield - a labrynth of statutory and common law privileges and defenses and exceptions thereto, suing for acts arising from family law and CPS proceedings has now become even more fraught with danger for the family law and civil litigation attorney alike.   Malicious prosecution, abuse of process, and defamation are the least understood and most abused torts on the books, perhaps because they are not taught in most law schools.  Also IIED claims are common here as well and just as difficult to prove, and when based in communicative petition activity, they are barred by the litigation privilege subject to the narrow exceptions discussed above.   The lesson for plaintiffs' attorneys is to think hard and have your complaint screened for potential SLAPP and privilege issues and prepare for the SLAPP motion before filing it.   For the defense, always look for ways to SLAPP these claims out of court.   But this can be more difficult in light of the Mann rule on prong 2 mixed cause of actions.   Mann v. Quality Old Time Service (2004) 129 Cal.app.4th 90, 106.

 Losing plaintiffs will pay the other side's attorney's fees to the tune of tens of thousands of dollars.  The losing defendant has an immediate right of appeal and will get appeal fees is successful on appeal.   Then the defense will have the right to file a SLAPPBack malicious prosecution action under CCP 425.18 against the losing plaintiff and his/her attorneys in the prior action.

A competent and experienced SLAPP/malicious prosecution/defamation attorney can dramatically improve chances of winning or losing a SLAPP motion or opposition and, more importantly, can cut down a hefty fee request from the defense and maximize the defense fees with a detailed expert declaration.  

While just about any cause of action can trigger a SLAPP motion, the most common SLAPP type claims involve malicious prosecution, abuse of process, defamation, internet libel, slander, trade libel, intentional interference with business, IIED, invasion of privacy, public nuisance claims based on expressive activity.   All of these claims, except for malicious prosecution, often involve litigation and other privilege defenses.  

Remember SLAPP motions are nuclear.  Everything else is just a toy.