Friday, June 11, 2010
C.A.: Suit Over Attorney’s Rule Violation a SLAPP
By STEVEN M. ELLIS, Staff Writer
An action against a Beverly Hills attorney who admittedly violated a court rule by filing an unredacted copy of a man’s credit report in support of a motion was a strategic lawsuit against public participation, the Fourth District Court of Appeal ruled yesterday.
Div. Three said Irene Intelligator was engaged in protected activity when she filed the report while representing the man’s ex-wife in postmarital dissolution proceedings, and affirmed a trial court’s order striking the man’s complaint.
The justices rejected the man’s argument that Intelligator’s violation of California Rules of Court rule 1.20 constituted the type of illegal conduct that would preclude her from relying on the anti-SLAPP statute to strike the man’s complaint.
Intelligator filed the report in support of a motion to require the man to pay outstanding medical bills his ex-wife claimed were adversely affecting her credit.
According to the wife, a non-English speaking Russian immigrant, she learned of the outstanding bills when she went to purchase a car after the judgment of dissolution was entered. She said she was denied a loan when the lender discovered that she had an adverse credit report, and that the bills were reflected only on her credit report, not her ex-husband’s credit report.
Intelligator sent demand letters regarding the unpaid bills to the ex-husband’s attorney, and later filed a motion to require the man to pay the outstanding bills. She attached copies of both parties’ credit reports to the motion, but failed to redact certain personal identifiers. Intelligator later conceded that she had violated rule 1.20’s prohibition on including such identifiers.
The man sued alleging violations of Civil Code Sec. 1785.19—which allows consumers to bring an action for certain misuse of credit reports—and invasion of privacy, but Intelligator demurred and moved to strike under Code of Civil Procedure Sec. 425.16.
Orange Superior Court Judge Peter J. Polos granted the motion and awarded Intelligator $6,840 in attorney fees and costs. He also later denied the ex-husband’s subsequent motion for reconsideration and his challenge to the award.
On appeal, the ex-husband pointed to the California Supreme Court’s decision in Flatley v. Mauro (2006) 39 Cal.4th 299 that the anti-SLAPP statute does not apply when the assertedly protected speech or petition activity was illegal as a matter of law. He contended that Intelligator’s admitted rule violation exceeded the bounds of protected activity.
However, Justice Eileen C. Moore wrote that Intelligator’s actions were not the type of criminal conduct addressed in Flatley, and noted that the ex-husband had other means of redress, such as sanctions against Intelligator in the ongoing postdissolution proceedings.
“A separate lawsuit was completely unnecessary,” she said. “Furthermore, if an attorney were subject to a separate action each time he or she committed a rule violation in the representation of his or her client, the effect would be to chill the hearty pursuit of a protected activity—the right to petition.”
Concluding that Intelligator met her burden of showing she was engaged in protected activity, Moore then wrote that the ex-husband failed to meet his burden of demonstrating a probability of success on his claims because they were barred by Civil Code Sec. 47(b)’s litigation privilege. She also rejected the ex-husband’s argument that the privilege should yield to rule 1.20’s prohibition on the disclosure of personal identifiers.
Moore also upheld the amount of attorney fees and costs awarded, and said that Polos did not err in denying the ex-husband’s motion for reconsideration.
Justices William W. Bedsworth and Kathleen O’Leary joined Moore in her opinion.
The case is G.R. v. Intelligator, G042006.
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