S.A. v. Maiden

increasingly abrasive language toward her. In one message to her, he stated: “My primary motive is to ruin your life.” About the same time, N.A. learned that S.A. had transferred all of the money from their joint bank account to his personal account.

Domestic violence restraining orders. In June 2010, after eventually obtaining alternate travel documents, N.A. was able to return to the United States. Fearing future abuse, N.A. filed a request for a domestic violence restraining order against S.A. in the San Diego County Superior Court. After obtaining an initial temporary restraining order from the court, N.A. retained attorney Jan Maiden to represent her in her requests for subsequent restraining orders. The court issued a series of amended temporary restraining orders and ultimately set a June 6, 2011, hearing date for N.A.’s request for a permanent restraining order.

At the June 6, 2011, hearing, N.A. withdrew her request for a permanent restraining order against S.A. and the trial court accepted her voluntary dismissal of that request. Because N.A. had moved to Orange County and filed for legal separation, child custody, and child and spousal support in the Orange County Superior Court, she no longer believed a permanent restraining order against S.A. was necessary.

On June 29, 2011, S.A. filed an order to show cause (OSC) why he should not be awarded attorney fees and costs as sanctions against N.A. for her extensions of the temporary restraining order, which was based on false allegations, and her subsequent dismissal of her request for a permanent restraining order. The trial court granted the motion, finding S.A. was the prevailing party, and awarded him $3,500 in attorney fees and costs.

Complaint. On June 6, 2012, S.A. filed the instant complaint against N.A. and Maiden, alleging causes of action for malicious prosecution, abuse of process, and intentional infliction of emotional distress. He alleged N.A. and Maiden, maliciously and without probable cause, initiated and actively maintained the domestic violence restraining orders against him.

N.A. and Maiden filed separate anti-SLAPP motions to strike the complaint against them. On March 11, 2013, the trial court granted both motions. Finding N.A.’s request for a domestic violence restraining order “presented a quintessential family law issue,” the court applied the holding of Bidna v. Rosen (1993) 19 Cal.App.4th 27 [ 23 Cal.Rptr.2d 251 ] (Bidna) and concluded S.A. could not state a malicious prosecution cause of action against N.A. and Maiden for their actions in initiating and maintaining requests for the domestic violence restraining orders against him. The court also found the Civil Code section 47, subdivision (b), litigation privilege

299 , 325 [ 46 Cal.Rptr.3d 606 , 139 P.3d 2 ]; Robinzine, supra, 143 Cal.App.4th at p. 1421; Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921 , 929 [ 116 Cal.Rptr.2d 187 ].)

Malicious Prosecution Cause of Action

S.A. asserts the trial court erred by finding his malicious prosecution cause of action was barred by the anti-SLAPP statute, arguing he established there was a probability he would prevail on that cause of action.

A malicious prosecution action arises from protected activity under the anti-SLAPP statute because it involves the filing and prosecution of an underlying lawsuit, or petition to the judicial branch, that allegedly was malicious. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728 , 734-735 [ 3 Cal.Rptr.3d 636 , 74 P.3d 737 ].) Section 425.16, subdivision (e), provides: “As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (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 . . . .” (Italics added.) Accordingly, “[b]y definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit.” (Jarrow Formulas, at p. 735.) “The plain language of the anti-SLAPP statute dictates that every claim of malicious prosecution is a cause of action arising from protected activity because every such claim necessarily depends upon written and oral statements in a prior judicial proceeding.” (Daniels v. Robbins (2010) 182 Cal.App.4th 204 , 215 [ 105 Cal.Rptr.3d 683 ].) We conclude, as S.A. apparently concedes, that his malicious prosecution cause of action is based on N.A. and Maiden’s protected activity of initiating and maintaining requests for domestic violence restraining orders, thereby satisfying the first prong of the anti-SLAPP statute. (§ 425.16, subds. (b)(1), (e).)

Having determined S.A.’s malicious prosecution cause of action satisfied the first prong of the anti-SLAPP statute, we now determine whether S.A. has satisfied the second prong by “establishing] that there is a probability that [he] will prevail on the claim.” (§ 425.16, subd. (b)(1).) Alternatively stated, we determine whether S.A. presented evidence that, if believed by the trier of fact, would be sufficient to support a judgment in his favor. (Robinzine, supra, 143 Cal.App.4th at p. 1421.) In making our

determination, we consider the pleadings and any supporting or opposing affidavits stating the facts on which the liability or defense is based. (§ 425.16, subd. (b)(2).)

To prevail on a cause of action for malicious prosecution, S.A. must prove he was previously sued on a claim initiated or continued by Maiden without probable cause and with malice, and pursued to a termination in his favor. (Slaney v. Ranger Ins. Co. (2004) 115 Cal.App.4th 306 , 318 [ 8 Cal.Rptr.3d 915 ]; Zamos v. Stroud (2004) 32 Cal.4th 958 , 965, 970 [ 12 Cal.Rptr.3d 54 , 87 P.3d 802 ]; Robinzine, supra, 143 Cal.App.4th at p. 1422.) Malicious prosecution is a “disfavored” cause of action and the trend has been for courts to limit its expansion. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863 , 872 [ 254 Cal.Rptr. 336 , 765 P.2d 498 ]; see Siam v. Kizilbash (2005) 130 Cal.App.4th 1563 , 1571 [ 31 Cal.Rptr.3d 368 ] (Siam).)

We conclude the trial court correctly ruled that S.A. did not make a prima facie case showing there was a probability he would prevail on his malicious prosecution cause of action against Maiden. We conclude the court correctly applied the holding in Bidna and found S.A. could not state a malicious prosecution cause of action against Maiden for her actions in initiating and maintaining N.A.’s requests for domestic violence restraining orders against him. In Bidna, the court applied the California Supreme Court’s reasoning in Sheldon Appel to establish a “bright-line rule” barring malicious prosecution causes of action arising out of family law proceedings. (See Bidna, supra, 19 Cal.App.4th at pp. 29-30, 37-39.) Bidna held that “no malicious prosecution action may arise out of unsuccessful family law motions or OSC’s.” (Id. at p. 37.) Bidna cited four reasons for adopting that bright-line rule: (1) family law cases have a “unique propensity for bitterness” that makes it difficult to distinguish a truly malicious motion from an ordinary one; (2) family law courts have the unique ability or authority to swiftly discourage “litigious nonsense” or frivolous motions by imposing attorney fee awards as sanctions; (3) family law matters often require a special sensitivity and flexibility in crafting remedies and the threat of malicious prosecution liability would increase the risk for a family law litigant in seeking any particular remedy and decrease the likelihood of obtaining effective relief; and (4) malicious prosecution liability would raise malpractice insurance premiums for family law attorneys and indirectly make clients’ access to attorneys more expensive. (Id. at pp. 35-36; see Siam, supra, 130 Cal.App.4th at pp. 1571-1572.) Although the facts in Bidna involved underlying child custody motions, the court pronounced a rule precluding malicious prosecution actions that arise out of family law motions and OSC’s. (Bidna, at p. 37.)

Except for the exception to Bidna’s general rule recognized in Nicholson v. Fazeli (2003) 113 Cal.App.4th 1091 [ 6 Cal.Rptr.3d 881 ] (Nicholson), we agree with and adopt Bidna’s general holding and apply it to the circumstances in this case. We conclude a request for a domestic violence restraining order is a family law motion within the meaning of Bidna. First, the statutory scheme that authorizes such restraining orders, the Domestic Violence Prevention Act (DVPA), is found in Family Code section 6200 et seq. The DVPA’s definition of “domestic violence” includes abuse perpetrated against a spouse, former spouse, cohabitant, former cohabitant, person with whom the respondent is having or has had a dating or engagement relationship, and a person with whom the respondent has had a child. (Fam. Code, § 6211.) Family Code section 6320 authorized the initial and subsequent amended temporary restraining orders issued by the trial court in this case. That statute provides: “The court may issue an ex parte order enjoining a party from . . . striking, stalking, threatening, sexually assaulting, battering, . . . harassing, telephoning, . . . contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.” (Fam. Code, § 6320, subd. (a).) “The court may issue an ex parte order enjoining a party from . . . striking, stalking, threatening, sexually assaulting, battering, . . . harassing, telephoning, . . . contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members.” (Fam. Code, § 6320, subd. (a).) The fact the DVPA authorizes restraining orders not only for the protection of persons traditionally considered “family members,” but also persons who may not traditionally be considered “family members,” does not preclude a request for a DVPA restraining order from constituting a family law motion within the meaning of Bidna. Second, requests for DVPA restraining orders are, in general, heard and decided by judges assigned to the family law divisions of the county superior courts, as in this case. Based on the DVPA’s statutory scheme and practice, we conclude requests for domestic violence restraining orders pursuant to the DVPA are “family law motions” within the meaning of Bidna’s holding. In the circumstances of this case, the request by N.A. for an initial DVPA restraining order, and subsequent requests for extensions and/or amendments, against her husband, S.A., constitute family law motions within the meaning of Bidna.

Furthermore, the reasons Bidna cited for its holding apply equally to this case to provide support for our conclusion that S.A. is precluded from pursuing a malicious prosecution cause of action against Maiden. First, the DVPA generally applies where the victim has been abused, threatened, or harassed by a person who is a family member or has or had a close

relationship with the victim. It is evident based on our consideration of numerous DVPA appeals that there is often extreme bitterness between the parties, making it difficult to distinguish a malicious DVPA restraining order request from an ordinary one. (Bidna, supra, 19 Cal.App.4th at p. 35.)

Second, family law courts are authorized to impose attorney fee awards as sanctions against persons who frivolously or maliciously and without probable cause request DVPA restraining orders. (Fam. Code, §§271, 6344; see Code Civ. Proc., § 128.7.) In fact, in this case the trial court awarded S.A. $3,500 in attorney fees and costs after N.A. voluntarily dismissed her request for a permanent restraining order. Family law courts have the unique ability or authority to swiftly discourage “litigious nonsense” or frivolous motions by imposing attorney fee awards as sanctions. (Bidna, supra, 19 Cal.App.4th at p. 35.)

Third, if malicious prosecution actions were permitted against persons who request DVPA restraining orders, there would be a “chilling effect” on the ability of victims of domestic violence and other abuse to obtain protective relief under the DVPA. (Bidna, supra, 19 Cal.App.4th at p. 35.) That disincentive to apply for protective relief would be contrary to the public policy underlying, and the legislative intent of, the DVPA. The DVPA provides: “The purposes of this division are to prevent the recurrence of acts of violence and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence.” (Fam. Code, § 6220.)

Finally, the imposition of malicious prosecution liability on family law attorneys representing victims of domestic violence based on their representation of victims who request DVPA restraining orders would logically increase the cost of malpractice insurance for family law attorneys and presumably make it more expensive for victims to obtain representation in those family law matters. (Bidna, supra, 19 Cal.App.4th at pp. 35-36.) Based on our consideration of Bidna’s reasons for barring malicious prosecution claims, we conclude those same reasons apply to the DVPA restraining orders requested by N.A., and her attorney, Maiden, against S.A. in the circumstances of this case. We conclude both Bidna’s holding and reasoning support our conclusion that S.A. cannot state a malicious prosecution cause of action against Maiden for N.A.’s request, filed in the family law court, for the initial DVPA restraining order and N.A. and Attorney Maiden’s subsequent requests for extensions, renewals, and/or amendments of the initial restraining order.

The case of Nicholson, supra, 113 Cal.App.4th 1091 is not apposite to this case and does not persuade us to reach a contrary conclusion. Nicholson

involved postdissolution judgment proceedings based on the family court’s retention of jurisdiction over property division and other matters. (Id. at p. 1094.) The former wife filed a complaint against the former husband’s trust, a party to the dissolution proceedings, seeking declaratory relief and imposition of a constructive trust. (Ibid.) The trust filed a cross-complaint against her, seeking possession of a vehicle and certain jewelry alleged to be trust property in her possession. (Ibid.) The cross-complaint was bifurcated from the dissolution proceedings and was subsequently voluntarily dismissed by the trust. (Id. at p. 1095.) The former wife then filed a malicious prosecution action against her former husband, the trustees of the trust, and their attorney. (Id. at pp. 1095-1096.) The trial court granted the trustees’ demurrer and dismissed the malicious prosecution action against them. (Id. at p. 1096.)

Nicholson rejected the argument that Bidna’s holding and reasoning applied to bar the malicious prosecution action against the trustees and their attorney. (Nicholson, supra, 113 Cal.App.4th at pp. 1096-1099.) Nicholson stated: “While Bidna’s broad language may have suggested that no malicious prosecution cause of action could be based on any action that ‘originate[d] in family law proceedings,’ we decline to extend Bidna’s ‘absolute bar’ to otherwise ordinary civil pleadings alleging ordinary civil causes of action that, for whatever reason, ‘originate in family law proceedings.’ The cross-complaint filed by [the trustees’ attorney] on behalf of [the trustees] allegedly at the direction of [the former husband] did not raise any family law issues. . . . The Trust’s action was simply a civil action for possession of property alleged to be trust property and damages for the loss of trust property. Had this same pleading been separately filed in the superior court, there would be no question that it could support a malicious prosecution action .... The mere fact that the cross-complainants used the family division case number and that the cross-complaint was filed in the family division did not transform the Trust’s ordinary civil action against [the former wife] into a family law motion, OSC or other inherently family law proceeding.” (Id. at pp. 1098-1099.) Nicholson also concluded that Bidna’s reasons for an absolute bar against malicious prosecution claims did not apply to ordinary civil actions that originate in family law proceedings. (Nicholson, at p. 1099.) Nicholson held the trial court erred by sustaining the defendants’ demurrer to the malicious prosecution action. (Ibid.)

We conclude Nicholson is inapposite to this case. Unlike the civil action for possession of property and damages involved in that case, the underlying motions in this case were requests for the initial DVPA restraining order and subsequent extensions, renewals, and/or amendments. As we discussed above, DVPA restraining order proceedings are family law proceedings over which the family law divisions of the superior courts have jurisdiction. Therefore,

they are not “ordinary civil actions” that may merely originate in the family court. Nicholson’s reasoning does not persuade us to reach a contrary conclusion.

Our conclusion is further supported by other cases applying Bidna’s holding and/or reasoning to bar malicious prosecution actions against persons who request restraining orders pursuant to statutory schemes other than the DVPA. In Siam, the court applied the reasoning of Bidna, Sheldon Appel, and Pace v. Hillcrest Motor Co. (1980) 101 Cal.App.3d 476 , 479 [ 161 Cal.Rptr. 662 ] (barring malicious prosecution actions arising out of small claims actions), and concluded malicious prosecution actions cannot be based on an unsuccessful civil harassment petition under section 527.6. (Siam, supra, 130 Cal.App.4th at pp. 1567, 1571-1574.) Siam held the trial court erred by denying the defendant’s anti-SLAPP motion to strike the malicious prosecution claim against him. (Id. at p. 1574.)

Following Siam’s reasoning (based, in part, on Bidna’s reasoning), Robinzine similarly concluded malicious prosecution claims cannot be based on an unsuccessful workplace harassment petition under section 527.8. (Robinzine, supra, 143 Cal.App.4th at pp. 1419, 1422-1424.) Robinzine stated: “Given the substantial similarity between petitions under section 527.6 and section 527.8, the reasoning of Siam applies equally to both statutes. As we have noted, section 527.8 was enacted to allow employers to seek protections comparable to those offered under section 527.6 to enjoin workplace threats or acts of violence against employees. [Citations.] Both statutory schemes describe a streamlined process for obtaining a temporary restraining order and preliminary injunction. [Citations.] Both envision self-representation by parties without the benefit of counsel, and exempt the process from filing fees. [Citations.] They contain similar provisions concerning notification, enforcement and the consequences of any order obtained in the proceedings. [Citations.] . . . Moreover, a prevailing defendant in an action filed under section 527.8 has available sanctions that can be obtained within the proceeding to redress baseless or harassing allegations. (See § 128.7.)” (Robinzine, supra, 143 Cal.App.4th at pp. 1423-1424, fn. omitted.) The court held the trial court erred by denying the defendants’ anti-SLAPP motion to strike the malicious prosecution claim against them. (Robinzine, supra, 143 Cal.App.4th at p. 1424.)

We conclude the basic statutory schemes of, and the public policies and legislative intents underlying, the DVPA and sections 527.6 and 527.8 are sufficiently similar to require a result in this case similar to Siam and Robinzine. All three statutory schemes provide expedited and simplified procedures for victims of violence, abuse, and harassment to obtain temporary and permanent restraining orders to protect them. Furthermore, because

the DVPA is contained in the Family Code and not in the Code of Civil Procedure (as are §§ 527.6, 527.8) and intends to help protect victims who are family members of, or who have or had close relationships to, the alleged abuser, Bidna’s reasoning applies more directly to a DVPA case, such as this case, than to the statutory schemes authorizing other restraining orders against violence, abuse, and harassment (i.e., §§ 527.6, 527.8). Siam’s and Robinzine’s holdings provide additional support for our conclusion.

Because we have concluded Bidna’s holding and reasoning apply to bar S.A.’s malicious prosecution claim against Maiden, and similar restraining order cases (i.e., Siam and Robinzine) support our conclusion, we independently conclude S.A. has not, and cannot, establish there is a probability he will prevail on his malicious prosecution cause of action. Based on S.A.’s failure to make a prima facie case on that second prong of section 425.16, subdivision (b)(l)’s requirements, we conclude the trial court correctly granted Maiden’s anti-SLAPP motion to strike his malicious prosecution cause of action against her.

Ill

Abuse of Process Cause of Action

S.A. contends the trial court erred by granting Maiden’s anti-SLAPP motion to strike his abuse of process cause of action, arguing he established there was a probability he would prevail on that claim.

A

“The common law tort of abuse of process arises when one uses the court’s process for a purpose other than that for which the process was designed. [Citations.] It has been ‘interpreted broadly to encompass the entire range of “procedures” incident to litigation.’ [Citation.] [|] ‘[T]he essence of the tort [is] . . . misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice.’ [Citation.] To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048 , 1056-1057 [ 39 Cal.Rptr.3d 516 , 128 P.3d 713 ] (Rusheen).)

Bidna described the difference between abuse of process and malicious prosecution, stating; “Abuse of process is not just another name for malicious prosecution. Simply filing or maintaining a lawsuit for an improper purpose (such as might support a malicious prosecution cause of action) is

not abuse of process. [Citation.] [f] Malicious prosecution and abuse of process are distinct. The former concerns a meritless lawsuit (and all the damage it inflicted). The latter concerns the misuse of the tools the law affords litigants once they are in a lawsuit (regardless of whether there was probable cause to commence that lawsuit in the first place). Hence, abuse of process claims typically arise for improper or excessive attachments [citation] or improper use of discovery [citation].” (Bidna, supra, 19 Cal.App.4th at p. 40, some italics added.) The California Supreme Court stated: “[T]he mere filing or maintenance of a lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action.'' (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157 , 1169 [ 232 Cal.Rptr. 567 , 728 P.2d 1202 ], italics added.) Alternatively stated, neither the initiation of a meritless claim nor the continued prosecution of a claim after it becomes apparent the claim is meritless can support an abuse of process cause of action. (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510 , 520 [ 37 Cal.Rptr.3d 381 ].) Such conduct may support a malicious prosecution cause of action, but not one for abuse of process. (Ibid.) In Ramona, we concluded: “[C]ontinued pursuit of meritless litigation for an improper collateral purpose, although actionable under malicious prosecution principles, is not separately actionable under an abuse of process theory.” (Id. at p. 521.)

B

Considering the first prong of the anti-SLAPP requirements, we incorporate our discussion regarding malicious prosecution above and conclude an abuse of process claim likewise involves protected activity under section 425.16. Therefore, the first anti-SLAPP prong is satisfied.

Regarding the second prong, we conclude S.A. has not established there is a probability he will prevail on his abuse of process cause of action. The gravamen of his abuse of process claim is that N.A. and her attorney, Maiden, initiated and maintained meritless DVPA restraining order proceedings for malicious purposes. He does not allege any misuse of process, or the tools of the law, in the course of maintaining those allegedly meritless DVPA proceedings. S.A.’s claim is for malicious prosecution and not abuse of process. (Rusheen, supra, 37 Cal.4th at p. 1056; Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., supra, 42 Cal.3d at p. 1169; Ramona Unified School Dist. v. Tsiknas, supra, 135 Cal.App.4th at pp. 520-521; Bidna, supra, 19 Cal.App.4th at p. 40; Adams v. Superior Court (1992) 2 Cal.App.4th 521 , 532 [ 3 Cal.Rptr.2d 49 ] [alleged malicious filings of meritless motions “are not actionable [as abuse of process] because there was no subsequent misuse of process and therefore no actionable wrong is alleged”].) However, as we discussed above, S.A. cannot state a malicious

[litigation privilege has “been held to immunize defendants from tort liability based on theories of . . . [citations] intentional infliction of emotional distress”]; Rosenthal v. Irell & Manella (1982) 135 Cal.App.3d 121 , 125 [ 185 Cal.Rptr. 92 ]; Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573 , 579 [ 131 Cal.Rptr. 592 ]; Kachig v. Boothe (1971) 22 Cal.App.3d 626 , 640-641 [ 99 Cal.Rptr. 393 ]; Agostini v. Strycula (1965) 231 Cal.App.2d 804 , 808 [ 42 Cal.Rptr. 314 ].) Civil Code section 47, subdivision (b), protects communications made “[i]n any . . . judicial proceeding.” In this case, because the alleged wrongful conduct did “not involve any action outside of ordinary court proceedings [citation] calculated to humiliate or inflict emotional distress” (Bidna, supra, 19 Cal.App.4th at p. 39), the litigation privilege under Civil Code section 47, subdivision (b), applies to bar S.A.’s IIED cause of action against Maiden. S.A. has not established there is a probability he will prevail on his RED cause of action. Based on his failure to make a prima facie case on the second prong of section 425.16, subdivision (b)(l)’s requirements, we conclude the trial court correctly granted Maiden’s anti-SLAPP motion to strike his IIED cause of action against her.

V

Conclusion

Because S.A. did not establish there is a probability he will prevail on any of his three causes of action against Maiden, we conclude the trial court correctly granted her anti-SLAPP motion to strike those causes of action against her. The court properly entered the judgment in her favor.

DISPOSITION

The judgment is affirmed. Maiden is entitled to costs on appeal.

McConnell, P. J., and Irion, J., concurred.

A petition for a rehearing was denied September 11, 2014, and the opinion was modified to read as printed above.