18-CIV-02717 ANTONIETTE CARRASCO VS. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2004-2, ET AL.

ANTONIETTE CARRASCO NATIONAL COLLEGIATE STUDENT LOAN TRUST 2004-2
JAMES A. MICHEL

DEFENDANTS NATIONAL COLLEGIATE STUDENT LOAN TRUST 2004-2, NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-2, TRANSWORLD SYSTEMS INC. AND PATENAUDE & FELIX, APC’S SPECIAL MOTION TO STRIKE (ANTI-SLAPP) TENTATIVE RULING:

Defendants NATIONAL COLLEGIATE STUDENT LOAN TRUST 2004-2; NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-2; TRANSWORLD SYSTEMS, INC.; and PATENAUDE & FELIX, APC’s Special Motion to Strike is GRANTED IN PART and DENIED IN PART, pursuant to Code Civ. Proc. § 425.16.

A defendant specially moving to strike has the burden to show that the conduct underlying a cause of action arises from protected activity. City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79. Once this has been established, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. Zamos v. Stroud (2004) 32 Cal.4th 958, 965.

The motion is DENIED as to Plaintiff’s First cause of action for equitable relief, which seeks to vacate the default judgments obtained in two underlying collection actions, San Mateo County Superior Court Case Nos. CIV 522411 and CLJ 522412. Defendants assert that as to the first prong of the anti-SLAPP analysis, the “critical question is whether the cause of action is based on defendant’s protected, petitioning activity, and the court looks to the gravamen or principal thrust of plaintiff’s cause of action to answer that question,” citing Episcopal Church Cases (2009) 45 Cal.4th 467, 477-478 (Defendants’ MPA at p. 6:2-5.) Here, the gravamen of Plaintiff’s First cause of action is not based on Defendants’ protected activity, but is rather an equitable attack upon the default judgments for lack of jurisdiction. Accordingly, the motion is denied as to this cause of action.

The motion is GRANTED as to Plaintiff’s Second cause of action for violations of the Rosenthal Fair Debt Collection Practices Act and Third cause of action for extrinsic fraud. Unlike the First cause of action, these claims assert that Defendants made certain statements to the Court, including that Plaintiff had been properly served with the Summons and Complaint and that Defendants were entitled to garnish more than $25 per month from Plaintiff’s account, and seek damages and statutory penalties against Defendants. Such statements fall under the category of “Any written or oral statement made before a legislative, executive or judicial proceeding or any other official proceeding authorized by law”, and are protected. Code Civ. Proc. § 425.16(e)(1). The first prong on the anti-SLAPP test has been met.

However, Plaintiff is not able to establish the probability of prevailing on these claims due to the litigation privilege afforded by Civil Code § 47, which provides in pertinent part:

A privileged publication is one made: (b) In any…judicial proceeding,… in any other official proceeding authorized by law or… in the initiation or course of any other proceeding authorized by law.

“The breadth of the litigation privilege cannot be understated. It immunizes defendants from virtually any tort liability (including claims for fraud), with the sole exception of causes of action for malicious prosecution.” Olsen v. Harbison (2010) 191 Cal.App.4th 325, 333. It applies to any communication (1) made in judicial or quasijudicial 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.” Malin v. Singer (2013) 217 Cal.App.4th 1283, 1300. The privilege is not just limited to statements made at trial or other proceedings; it extends to steps taken prior thereto or after. Id. The privilege “is interpreted broadly in order to further its principal purpose of affording litigants and witnesses the utmost freedom of access to the courts without fear of harassment in derivative tort actions. The privilege is absolute regardless of malice.” Id.

Courts often analyze the litigation privilege in the second step of the anti-SLAPP process because “the litigation privilege…may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.” Flatley v. Mauro (2006) 39 Cal.4th 299, 323. Thus, for purposes of an anti-SLAPP motion, “a plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant’s liability on the claim.” Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 883.

Plaintiff’s Second cause of action for violation of the RFDCPA is barred by the litigation privilege, because Defendants’ alleged conduct is limited to filings in the underlying collection actions. Boon v. Professional Collection Consultants (S.D. Cal. Oct. 17, 2013) 978 F.Supp.2d 1157. The Complaint alleges no other activity outside of statements made by Defendants to the Court in the underlying actions. Thus, Defendants’ conduct falls within the litigation privilege.

Plaintiff’s Third cause of action for extrinsic fraud on the Court is likewise barred. This cause of action alleges that Defendants made misrepresentations to the Court when they presented an order for the Court’s signature that omitted the $25 per month limitation on garnishment. Plaintiff cites Earp v. Nobmann (1981) 122 Cal.App.3d 270, 285 for the proposition that statements made by a party for the purpose of impeding the interests of justice are not protected by the litigation privilege. However, Earp v. Nobmann was specifically disapproved by Silberg v. Anderson (1990) 50 Cal.3d 205, 212-213 that stated we disapprove the decisions announcing or employing the “interest of justice” rule to the extent they are inconsistent with this opinion”. :

As Plaintiff is unable to overcome the litigation privilege, the motion is granted as to the Second and Third causes of action.

Defendants’ Request for Judicial Notice is GRANTED as to Exhibits 3, 5, 6, and 9. Judicial notice is GRANTED as to Exhibits 1, 2, 4, 7, and 8 insofar as they were filed with the Court, but not as to the truth of any matters asserted therein. Judicial notice is DENIED as to Exhibits 10 and 11, as Defendants have not demonstrated that the Zoerb class action has any bearing on the instant matter.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10. If the tentative ruling is uncontested, defendant is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312. The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.