Metropolitan News-Enterprise


Monday, January 4, 2010


Page 1


C.A.: Subpoenaed Witness’s Suit Over Bench Warrant a SLAPP


By SHERRI M. OKAMOTO, Staff Writer


A lawsuit arising from a witness’s arrest on a bench warrant for her alleged failure to appear pursuant to a subpoena has been thrown out by the Fifth District Court of Appeal as a SLAPP.

The panel affirmed Fresno Superior Court Judge Adolfo M. Corona’s order striking Shirlee Kemps’ complaint on Wednesday.

Kemps was the owner of Sierra Valley Medico Inc., a company which advertises itself as providing industrial and occupational care in nine locations across the state.

Fresno attorney Richard A. Beshwate claimed that he had Kemps, who served as custodian of records for the company, served with a trial subpoena for a criminal case in which he was serving as defense counsel.

Murder Trial

His client was facing multiple counts of murder, and as part of the defense strategy, Beshwate said he was seeking evidence that his client had been at a medical examination with one of Sierra Valley’s physicians on the day  the crimes took place.

Beshwate testified that Kemps had demanded payment of $150 per hour to attend the trial and failed to appear when he declined to compensate her.

Kemps insisted that she had never spoken to anyone about participating in the trial as a witness and denied ever having been served with a subpoena.

She insisted that she was not in her office at the time the proof of service stated she had been served and that she would not have been identified as the “office manager,” as the proof of service indicated, if she had been present.

When Kemps failed to appear to testify at the criminal trial, Beshwate applied for and obtained a warrant for her arrest. She was arrested by Fresno police and held in custody for several hours.

Kemps appeared for the trial later that same day where she testified that she had “received subpoenas to be here on many occasions.”

She later filed suit against Beshwate and his investigators for abuse of process, intentional infliction of emotional distress, and negligent infliction of emotional distress, alleging that the defendants had filed a false proof of service and declaration in order to obtain the bench warrant which resulted in her arrest.

Illegal Conduct

After the defendants filed a special motion to strike the complaint pursuant to Code of Civil Procedure Sec.425.16, Kemps filed an opposition arguing that the defendants had engaged in illegal conduct which could not be protected by the anti-SLAPP statute and that she had a probability of prevailing in her action because the litigation privilege did not immunize conduct directed at nonparties.

Corona tentatively granted the motion, and when Kemps did not request a hearing, entered an order striking her complaint.

Writing for the appellate court, Justice Steven M. Vartabedian explained that if the defendants’ purported protected speech or petition activity was illegal as a matter of law, then the defendants could not seek anti-SLAPP protection.

If Kemps’ version of events were true, the justice posited, some portion of the defendants’ conduct could have been illegal, but if the defendants’ version were credited, then that “would establish, at most, innocent confusion concerning the individual to whom some of them had spoken” and that the wrong subpoena had been mistakenly attached to the declaration for the bench warrant.

Conflicts in Evidence

He reasoned that a finder of fact could resolve the conflicts in evidence in favor of Kemps and “conclude as a matter of fact that some portion, possibly all, of the [defendants’] conduct was illegal,” but that the evidence “does not establish that the conduct was illegal as a matter of law.”

Vartabedian also said that Kemps’ focus on her “non-party status” was “misguided,” since witnesses “are direct and important participants in litigation” and she “was indeed a party in the proceeding to have her arrested and brought before the court to testify.”

The justice also noted that pursuant to Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, “the law in California is settled that absolute privilege from tort liability…applies to statements made to the authorities in order to obtain the arrest of a person, even where that person has no connection whatsoever to any pending litigation.”

Justices Dennis A. Cornell and Gene M. Gomes joined Vartabedian in his opinion.

The case is Kemps v. Beshwate, 10 S.O.S. 1.


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