Tuesday, March 11, 2003
C.A. Throws Out Suit Against Lawyer for Linking Client’s Husband to Possible Homicides 20 Years Earlier
By KENNETH OFGANG, Staff Writer
A lawsuit claiming that a Northern California divorce lawyer injured her client’s husband by telling police the man may have been involved in the disappearance of his former girlfriend and their son two decades earlier was a SLAPP, the First District Court of Appeal ruled yesterday.
Justice James Lambden, in an unpublished opinion for Div. One, said a trial judge erred in ruling that Mark Palmer Barnes could sue Healdsburg attorney Judith Stadler for intentional infliction of emotional distress. Stadler’s report to law enforcement was absolutely privileged, Lambden concluded.
Janine Barnes hired Stadler and sued for divorce in February 2001. A few months later, she was contacted by a reporter for the Honolulu Star-Bulletin who was working on a story about a woman who had hired a psychic to help in determining what happened to the woman’s sister and her son, and who had begun proceedings to have the two declared dead.
The sister was Barnes’ girlfriend, Charlotte Moriarty. She and the couple’s son, 6-month-old Marx, had disappeared in 1977 while living on the Windward side of Oahu, and police—who did not name a suspect—reported that the baby’s stroller was found at a bus stop.
Mark Barnes waited 20 days to report that Moriarty and the child was missing. He said he had not done so earlier because she had taken off for no reason before and he assumed she had done so again.
Family members—in addition to her sister, Moriarty had an 8-year-old daughter who was living on the mainland and planning a visit later that summer—said they never heard from her after her disappearance, and that she would have contacted them if she could.
After hearing from the reporter, Janine Barnes contacted Stadler, and the two of them contacted the FBI and the Sebastopol Police Department. A police sergeant, Barnes later testified, told Stadler she should get a “no-contact TRO and stay-order from the house.”
Barnes also testified that she got a phone call from her brother-in-law, telling her that her husband had a gun. Seeking a TRO, Stadler submitted a declaration saying Mark Barnes may been involved in “multiple homicides of Husband’s prior relationship and child” and that he had a gun, in violation of a previous TRO.
A new TRO was entered, limiting Mark Barnes’ contact with the minor children. The parties and their counsel later stipulated to an order barring public comment by any of them regarding the disappearance unless Barnes was charged with a crime, or designated a suspect by police.
Several months later, Mark Barnes sued Stadler for slander, abuse of process, and intentional infliction of emotional distress.
A Sonoma Superior Court judge struck the first two claims under the anti-SLAPP law. But the jurist held that since the emotional-distress cause of action was based entirely on the lawyer’s statements to police, which were not part of “any form of official proceeding,” neither the anti-SLAPP law nor the Civil Code Sec. 47 privilege applied.
“Stadler’s statements to the police and FBI were made in anticipation and in connection with the TRO she sought in the dissolution proceeding,” the justice wrote. He noted that the anti-SLAPP statute and the litigation privilege have both been held by the state Supreme Court to be applicable to statements “preparatory to or in anticipation of the bringing of an action or official proceeding.”
The justice rejected the argument that because the police and the FBI were not involved in the divorce litigation, Stadler’s statements to them “were merely spiteful slurs.” The comments had a “functional connection to the litigation,” he said, because they “were clearly made in order to further Janine’s interest in preventing Mark from having contact with the children and her” and were used to obtain a TRO.
The case is Barnes v. Stadler, A098892.
Copyright 2003, Metropolitan News Company