Friday, October 27, 2017
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Court of Appeal:
Anti-SLAPP Motion Lies Where Man Sues Ex-Wife for Turning Son Against Him
By a MetNews Staff Writer
The Fourth District Court of Appeal has held that a trial judge erred in denying an anti-SLAPP motion filed by a mother whose ex-husband accuses her in a lawsuit of brainwashing their 11-year-old son against him because that contention, and others she put forth, are implicated in ongoing proceedings in family law court.
Justice Terry B. O’Rourke of Div. One wrote the opinion reversing a determination by San Diego Superior Court Judge Earl H. Maas III that plaintiff Philip Bohrer’s action against his ex-wife, Lisa Carroll, may proceed. The opinion, filed Wednesday, was not certified for publication.
O’Rourke noted that an anti-SLAPP motion must be granted where a defendant’s conduct relates to the right to petition the government for redress of grievances—which includes maintaining a lawsuit—and where the plaintiff cannot show a probability of success on the merits.
Family Law Issues
He wrote:
“We conclude Bohrer’s specific allegations regarding Carroll’s speech and conduct arise from the parties’ family court litigation. The complaint is replete with references to family court proceedings and to the contents of court orders addressing the parties’ visitation and custody arrangements….
“More specifically, as to the infliction of emotional distress causes of action, Bohrer alleged he suffered severe emotional distress because of Carroll’s actions…, which led to the ‘complete alienation and loss of affection of his son’ and the ‘[d]enial of the social pleasures and companionship of his son.’ These were issues that arose in the family court litigation, and but for that litigation, the injury Bohrer alleges would not have occurred.”
Bohrer contended that Carroll made false reports of alleged child on his part to various authorities, asserting that the reports were false and known by her to be so, and therefore beyond the protection of the anti-SLAPP statute. But the contention that she knowingly made false reports was not established, O’Rourke said, because Carroll denied it in a declaration.
Plaintiff Can’t Prevail
The first prong of the anti-SLAPP statute—showing that the conduct arose from the right of petition—was satisfied, the jurist declared, as was the second prong: the inability of the plaintiff to show a probability of prevailing.
“As a general matter, Bohrer cannot prevail on his tort causes of action because the superior court lacked jurisdiction to adjudicate the tort claims raised in this lawsuit, as they involve the same matters pending in the family court,” O’Rourke said. He went on to say:
“[W]e also conclude the litigation privilege applies to those same claims.”
The case is Bohrer v. Carroll, D070767.
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