Wednesday, August 15, 2007
Court of Appeal Takes Broad View of Litigation Privilege
Voice Mail Messages About Contemplated Lawsuit No Basis for Slander Suit, Div. Five Panel Says
By a MetNews Staff Writer
Voice mail messages about anticipated litigation are privileged, the Court of Appeal for this district ruled yesterday, throwing out a slander suit under the anti-SLAPP statute.
Writing for the court, Justice Richard Mosk opined that Los Angeles Superior Court Judge Robert Hess erred in denying an anti-SLAPP motion attacking Sophia Rohde’s complaint against West Los Angeles attorney Michael Wolf.
The case evolved out of a dispute between Rhode and her brother, George Metsos over distribution of their father’s will, specifically over the sale of property and distribution of the proceeds.
Wolf, Metsos’ attorney, met with Rohde, her attorney, and her husband. An agreement was made to sell property located in Chatsworth.
Steve Weiss of NAI Capital was to be the listing agent and prepare the listing agreement. It was further agreed that the sale would not commence without the mutual consent of Metsos and Rohde; both parties were to be apprised of any developments concerning the property.
On April 25, 2006, Wolf phoned Weiss and requested that he was to be included in any communication regarding the listing and sale of the property. Weiss informed him he would have some information for Metsos later that week.
Wolf later contacted Weiss, leaving him a voice message to return his call. In a responding voice message, Weiss said that Rohde had “specifically instructed” him not to send Wolf the listing agreement and proposal.
Wolf unsuccessfully attempted to contact Weiss.
He recorded two voice mail messages, stating:
“I believe you are obviously engaged in a conspiracy to defraud my client with Sophia Rohde and I plan on taking appropriate action.
“Since you are obviously avoiding my calls, I can only assume that you are engaged in some kind of conspiracy with Sophia Rohde to deprive George Metsos of his interest in his property.”
Rohde filed suit against Wolf alleging defamation amounting to slander per se. Wolf filed his anti-SLAPP motion, which Hess denied.
The motion should have been granted, Mosk said. Because the voice mails related to anticipated litigation, he explained, the anti-SLAPP statute applied.
Code of Civil Procedure Sec. 425.16 makes it clear that statements, writings, and pleadings in connection with civil litigation are covered by the statute, Mosk said, with no requirement that the subject matter be of public interest.
Because the defendant’s litigation-related conduct is protected by the statute, Mosk went on to say, the burden shifted to the plaintiff to show that she was likely to prevail in the litigation. But because the communications were protected by the litigation privilege, that burden could not be met, the justice said.
“Defendant’s voicemail messages to Weiss were statements made in connection with an asset that was the subject of the dispute in which both plaintiff and defendant threatened litigation. In short, the spectre of litigation loomed over all communications between the parties at that time. Thus, the messages concerning the subject of the dispute and threatening appropriate action in that context had to be in anticipation of litigation.”
Justices Sandy Kreigler and Orville Armstrong joined in the opinion.
Attorneys on appeal were Roy G. Rifkin and Ryan P. Eskin of Wolf, Rifkin, Shapiro & Schulman for Wolf and T. Randolph Catanese and Douglas R. Hume of Catanese & Wells for Rohde.
The case is Rohde v Wolf, 07 S.O.S. 5049.
Copyright 2007, Metropolitan News Company