Tuesday, November 29, 2011
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C.A. Applies Anti-SLAPP Statute to Proceeding in Foreign Court
Justices Toss Suit Against Local Lawyer Over Alleged Role in African Prosecution
By SHERRI M. OKAMOTO, Staff Writer
The C.A. for this district yesterday threw out a malicious prosecution case against a Santa Monica attorney based on his submission of an affidavit during judicial proceedings in Zimbabwe.
Div. Five said the filing by Donald C. Randolph of Randolph & Associates qualified as a writing made in connection with an issue under consideration by a judicial body for purposes of protection under Code of Civil Procedure Sec.425.16, the anti-SLAPP statute.
Randolph had represented Edward Galante, a resident of Zimbabwe, in proceedings arising from his contentious divorce from his then-wife, Jacaranda Summerfield.
Summerfield allegedly removed all of the property from the marital residence in Zimbabwe with her parents’ assistance and stored it in various locations, including her parents’ home, without informing Galante. She then left Zimbabwe with their children, and relocated to Northern California.
When Galante discovered the marital property was no longer at the marital residence, he obtained a writ of arrest against his wife’s parents and sister, alleging they had assisted Summerfield in removing his property, had possession of valuable items, and intended to flee Zimbabwe.
The sister, Topaz Summerfield, allegedly was then arrested and held overnight in a Zimbabwe prison with her two-year old daughter. She relinquished her passport and return airline ticket to Galante in exchange for her release.
In March 2002, Topaz Summerfield and her parents filed an affidavit opposing the writ of arrest. The parents also returned some property to Galante, and his wife provided him with information about the disposition of the remaining property.
After a contested hearing, a Zimbabwean court found Galante had failed to show that Topaz Summerfield was involved in the removal of property from the marital residence and discharged the writ of arrest.
In February 2003, Summerfield filed a complaint against Galante in Los Angeles on behalf of herself and her daughter, alleging causes of action for false arrest with warrant, false imprisonment, malicious prosecution, abuse of process, and intentional infliction of emotional distress. Randolph represented Galante in these proceedings..
New Trial Ordered
A jury subsequently found in favor of Galante as to all causes of action, but the Court of Appeal reversed and remanded for a new trial, ruling that the jury’s verdict was internally inconsistent and not supported by substantial evidence as to the causes of action for false arrest, false imprisonment, and malicious prosecution.
In April 2009, Galante filed an application in the Zimbabwean court for permission to appeal from the final judgment in the writ of arrest case. The application was supported by several affidavits, including one from Randolph, in which the attorney asserted that leave for a late-filed appeal was warranted since Galante’s Zimbabwe counsel had not anticipated the interpretation of the Zimbabwe order under California law and that new evidence in the California case established Topaz Summerfield’s culpability in aiding and abetting her parents’ possession and concealment of Galante’s property.
The court in Zimbabwe denied Galante’s application last February and Summerfiled then sued Randolph for malicious prosecution, seeking over $1 million in damages.
Randolph filed a special motion to strike the complaint as a strategic lawsuit against public participation, alleging Summerfield’s claim arose from an act in furtherance of his right of petition or free speech.
Los Angeles Superior Court Judge Mel Red Recana was not persuaded, finding the anti-SLAPP statute does not apply to petitioning activity in a foreign country.
‘Official Proceeding’
Writing for the appellate court, Justice Sandy R. Kriegler explained Randolph’s affidavit constituted protected activity under Sec. 425.16 as a “writing made in connection with an issue under consideration… by a… judicial body, or any other official proceeding authorized by law.”
He noted the affidavits “contained statements about the effect of the Zimbabwe order in the Los Angeles case and the facts supporting probable cause for the writ of arrest,” which “were made in connection with issues under consideration in the Los Angeles case.”
The justice thus reasoned the statements were made to the Zimbabwe an court “to influence the determination of issues pending in the Los Angeles case,” and so they qualified for protection under the anti-SLAPP statute.
Presiding Justice Paul Turner and Justice Orville A. Armstrong joined Kriegler in his decision.
Randolph appeared in pro per on appeal, along with Gary L. Bostwick of Bostwick & Jassy. Summerfield was represented by Los Angeles attorney Jay R. Stein and James L. Goldman of Pircher, Nichols & Meeks.
The case is Summerfield v. Randolph, 11 S.O.S. 6341.
Copyright 2011, Metropolitan News Company