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Allegations That Lawyer Made to Third Party About Client’s Husband Declared Privileged
C.A. Says Attorney’s Defense to Credit Card Company of What She Charged in Divorce Case Was Protected Conduct, and Litigation Privilege Applies
By a MetNews Staff Writer
Disparaging statements an attorney made to a credit card company about her client’s husband—in seeking to justify charges for legal services in a divorce case paid for by the wife, on the couple’s account—constitute protected activity and are covered by the litigation privilege, Div. Five of the First District Court of Appeal has determined.
The unpublished opinion, by Justice Gordon B. Burns, was filed Thursday. It reverses an order by then-Alameda Superior Court Judge Eumi K. Lee (now a U.S. District Court judge for the Northern District of California) denying Oakland attorney Janice Cho’s anti-SLAPP motion in an action for libel and other alleged wrongs filed against her by the husband, Michael V. Kim.
Cho had represented Soo Jeong “Crystal” Kim in both the divorce case and in seeking a domestic violence restraining order (“DVRO”). The wife placed charges by Cho, totaling $92,211, on a credit card issued by Chase Bank, and the husband, viewing the amount as excessive, utilized the bank’s chargeback dispute process to contest two payments.
Cho’s Response
In her response, Cho said that her client “was REGULARY [sic] choked, punched, and raped” by her husband. She alleged that he “set up cameras in every room of the house and placed tracking devices” in his wife’s “purse and car” in order to “control and monitor her every move.”
Cho added that he “financially abused” his wife, asserting that he “fraudulently took out a second mortgage for $1 Million Dollars without my client’s authorized consent despite that she is listed on the Deed.”
The husband sued Cho, insisting her allegations were false.
Lee, in denying a special motion to strike under the anti-SLAPP statute, Code of Civil Procedure §425.16, found that the first prong—protected activity—was not satisfied, saying:
“Defendant cites no authority indicating that a communication directed to an uninterested third party concerning payment of legal fees qualifies for protection under the anti-SLAPP statute.”
Michael Kim remarked in his respondent’s brief on appeal:
“Indeed, there is no authority to suggest Appellant’s statements to a credit card vendor were protected activity (i.e. communications supporting her client’s right to petition). The credit card vender has no interest in the litigation and the thrust of Respondent’s claims are not based on the Appellant’s petitioning activity.”
Burns wrote that Cho’s conduct is protected as being interwoven with the litigation and, addressing an issue not reached by Lee, said that the husband failed to meet his burden under the second prong—showing a probability of prevailing on the merits—and could not do so in light of the litigation privilege.
First Prong
As to the conduct being protected, the jurist recited that “Cho’s rebuttal” to Michael Kim’s statements to Chase “did not contain any statements of fact about Michael that were unrelated to the issues in the dissolution and DVRO actions.” He continued:
“[T]he chargeback dispute clearly relates to funding Cho’s legal services. And funding an attorney’s services to prosecute a lawsuit, as well as soliciting litigation funding, are themselves protected acts in furtherance of petitioning activity.”
Burns said that the wife’s “allegations of financial abuse and her right to use community property funds to pay her legal fees were substantive issues in the litigation,” noting that in her DVRO petition, she “requested spousal and child support, the payment of attorney fees, and alleged that Michael restricted her access to and “controls all the [couple’s] money.” He pointed out that “[d]epriving a spouse of funds required for basic necessities qualifies as abuse under the Domestic Violence Prevention Act.”
Michael Kim asserted in his brief that “the credit card vendor is not a participant in the divorce proceedings and has no interest in its outcome.” Burns said that Lee erred in accepting that position.
Chase Bank is the couple’s creditor, he said, reasoned that it (as well as an agent of Cho that saw her rebuttal) “had some interest in the parties’ litigation—which is all that is required.”
Second Prong
Burns went on to say:
“Michael failed to demonstrate any probability of prevailing on his libel, negligence, and intentional infliction of emotional distress claims.”
He explained:
“Here, the litigation privilege applies because Cho’s chargeback rebuttal statements were made in connection with judicial proceedings (i.e., the dissolution and DVRO proceedings) by [Soo Jeong Kim’s] attorney with the aim of achieving [the wife’s] litigation objectives (continued representation so that [she] might obtain relief)….[T]he statements were reasonably related to the actions and were made to nonparties with a substantial interest in the litigation.”
The case is Michael V. K. v. Cho, A169917.
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