2012-00137635-CU-CO

John Marshall vs. Jennifer J. Silver

Nature of Proceeding: Motion for Judgment on the Pleadings

Filed By: Cable, Keith D.

Defendants Moe’s Process Serving, Inc., Darin Fain and Lauri Greenberg’s Motion for Judgment on the Pleadings is denied.

Defendants’ Request for Judicial Notice of the Second Amended Complaint is granted.

The Court has considered the late filed opposition. If defendants seek additional time to file a supplemental Reply, the Court will grant a brief continuance.

Defendants seek judgment on the pleadings with respect to the 3rd cause of action for Fraud, the 4th cause of action for Fraud, and the 5th cause of action for Breach of Contract in the Second Amended Complaint. Defendants contend that the alleged conduct complained of is the filing of a false proof of service in the underlying action and that such conduct falls within the litigation privilege in Civil Code section 47(b).

The Second Amended Complaint alleges that Plaintiff John Marshall obtained a default judgment against Peter J. Berghuis. Plaintiff alleges he had a contract with defendants

to properly serve Mr. Berghuis in the underlying action. Defendants told plaintiff that Berghuis had been properly served, knowing that the proof of service of the summons and complaint were forged. The proof of service of the summons and complaint stated that Jennifer J. Silver for Sierra Attorney Services completed the service. The proof of service was subsequently determined to be forged, and therefore void, in the underlying action, resulting in the vacating of the default judgment and the subsequent dismissal of the action for failure to serve the summons and complaint within 3 years of the filing of the complaint. Plaintiff also alleges that during this litigation the defendants told him that they had no involvement in the service of Peter L. Berghuis in the underlying case nor in the fraudulent proof of service, resulting in plaintiff dismissing the present lawsuit against defendants “as it was originally filed.”

Civil Code § 47(b), known as the “litigation privilege”, provides: “[a] privileged publication or broadcast is one made . . . [i]n any . . . judicial proceeding . . . .” Civ. Code, § 47(b). The litigation privilege 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. The privilege is absolute in nature, applying “to all publications, irrespective of their maliciousness.” Id. at 216. The privilege is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards. Rusheen v. Cohen (2006) 37 Cal.4th

1048, 1057. “The principal purpose of [Civil Code] section [47, subdivision (b)] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” Silberg, supra, 50 Cal.3d at 213.

Service of process in a case is generally viewed as a privileged communication. Navellier v. Sletten (2003) 106 Cal.App.4th 763, 770. The communicative act of preparing and filing an allegedly false declaration of service of process falls within the litigation privilege. Rusheen, supra, 37 Cal.4th at 1058. The litigation privilege even applies to false statements made by non-parties with no personal stake in the outcome of the litigation. Kemps V. Beshwate (2009) 180 Cal.App.4th 1012, 1018-1019. The litigation privilege has also been applied to claims alleging the preparation and filing of false or perjurious testimony or declarations. See, i.e., Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1431 (declaration ‘functions as written testimony,’ is a ‘communication, not conduct,’ and ‘is exactly the sort of communication the privilege is designed to protect’); Pettitt v. Lew (1972) 28 Cal.App.3d 484, 489 (preparing and presenting false documents is equivalent to the preparation and presentation of false testimony); Garden v. Getzoff (1987) 190 Cal.App.3d 907, 913-915 (claim that expert witness had manufactured false evidence for former wife in dissolution action was privileged).

In Rusheen v Cohen (2006) 37 Cal.4th 1048, 1058, the Supreme Court held that the act of filing an allegedly false proof of service by opposing counsel was a “communicative act” falling within the litigation privilege and could not support a tort cause of action for abuse of process against opposing counsel. Where a cause of action is based on a communicative act, the litigation privilege extends to those noncommunicative actions which are necessarily related to that communicative act. Because the execution of the judgment did not provide an independent basis for liability separate and apart from the filing of the false declarations of service, the gravamen of the action was the procurement of the judgment, not its enforcement.

Thus, the enforcement of the judgment in reliance on the filing of privileged declarations of service was itself privileged. Rusheen, at 1061-1062.

The 3rd cause of action for fraud alleges that defendants misrepresented to plaintiff in the underlying action that Mr. Berghuis had been properly served and concealed the fact that the proof of service had been forged.

The 4th cause of action for fraud alleges that during this litigation, defendants misrepresented to plaintiff that they had not been involved in the service of Berghuis or the fraudulent proof of service, inducing plaintiff to dismiss this case against them. (They were later brought back in as defendants in the case.)

The 5th cause of action alleges breach of the contract between plaintiff and defendants to serve the defendant in the underlying case.

In opposition, plaintiff contends that the claims against the defendants arise not from the litigation conduct, i.e. the act of filing the proof of service, but on separate communications to plaintiff not connected to the litigation. The alleged statements made in connection with the underlying lawsuit regarding having served Berghuis do not appear to have been made for the purposes of achieving the objects of the litigation (i.e. obtaining a judgment against Berghuis) but for purposes of being paid the service fee for accomplishing the service that defendants had contracted to perform.

The allegations of the Second Amended Complaint are distinguishable as they go beyond the mere filing of a proof of service in furtherance of the objectives of the underlying litigation.

The 3rd cause of action is not barred by the litigation privilege because the misrepresentations set forth in the 3rd cause of action were not made for the purposes of achieving the object of the underlying litigation but constituted independent conduct apart from the litigation. The 5th cause of action is not barred by the litigation privilege because Civil Code section 47 does not apply to breach of contract claims. Navallier, supra, at 776. The motion is denied as to the 3rd and 5th causes of action.

The 4th cause of action is not premised on the filing of the proof of service in the underlying case but arises from conduct that occurred in 2013, after this lawsuit was filed. However, the motion fails to address the specific allegations of the communications made in this fraud cause of action, therefore defendants have failed to meet their burden that the conduct is subject to the litigation privilege. Therefore, the motion is denied as to the 4th cause of action, without prejudice.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.