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Kemps v. Beshwate

December 30, 2009

SHIRLEE KEMPS, PLAINTIFF AND APPELLANT,
v.
RICHARD A. BESHWATE ET AL. DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Fresno County. Adolfo M. Corona, Judge. (Super. Ct. No. 07CECG01366AMC).

The opinion of the court was delivered by: Vartabedian, Acting P. J.

CERTIFIED FOR PUBLICATION

OPINION

This is an appeal from an order striking a complaint upon the granting of an anti-SLAPP (strategic lawsuit against public participation) motion. (See Code Civ. Proc., § 425.16, subd. (i) [order granting or denying special motion to strike is an appealable order].) Plaintiff and appellant Shirlee Kemps contends the trial court erred in concluding that the anti-SLAPP statute was applicable to her second amended complaint and that she had not established a probability she would prevail on the merits of her causes of action. Kemps's lawsuit stems from her arrest on a bench warrant arising from her alleged failure to appear as a subpoenaed witness. We will conclude the court did not err and, accordingly, will affirm the order striking the complaint.

Facts and Procedural History

Defendant and respondent Richard A. Beshwate represented a defendant, Timothy Young, in a multiple-murder case in Tulare County. As part of the defense case, Beshwate sought to show that Young had been at a medical examination with Dr. Charles Heller on the day of the murders.

Kemps is the owner of Sierra Valley Medico, Inc., apparently a company providing medical examinations in workers' compensation cases. The company employed Dr. Heller and other physicians to perform the medical examinations. Kemps was the custodian of records for Dr. Heller.

Beshwate hired defendant and respondent S.K. Nelson & Company, owned by defendant and respondent Scott Nelson (collectively, Nelson), to perform investigative services in connection with his representation of Young. Nelson, in turn, hired defendant and respondent Ronald Richard Weber to perform some of those services.

What happened next is in dispute. Respondents contend, in essence, that they thought Kemps was the office manager for Dr. Heller, that various of them spoke to Kemps prior to the trial, and that Weber served her with a trial subpoena. While initially cooperative, according to respondents, as trial drew near Kemps began to demand $150 per hour for her time attending the trial. When respondents declined to pay, Kemps failed to appear for trial.

Kemps, on the other hand, contends she never spoke to anyone about her own participation as a witness and was never served with a subpoena (although she did eventually testify at Young's trial that she had "received subpoenas to be here on many occasions"). She contends she was not even in her office at the time Weber's proof of service states she was served with the subpoena and, in any case, she would not have been identified as the "office manager," even if she had been present. Kemps contends she did not know she was supposed to be a witness.

The parties agree, however, that when Kemps failed to appear to testify, Beshwate applied for and obtained a warrant for her arrest. She was arrested by Fresno police on December 6, 2005, and held in custody for several hours. She agreed to appear for the Young trial later that day. She did so and provided testimony concerning Young's medical appointment with Dr. Heller.

Kemps filed a second amended complaint for abuse of process, intentional infliction of emotional distress, and negligent infliction of emotional distress. Nelson filed a special motion to strike pursuant to Code of Civil Procedure section 425.16.*fn1 Weber and Beshwate joined in the motion. Kemps opposed the motion, contending that respondents' conduct was not protected activity because it was unlawful as a matter of law. She also contended she had a probability of prevailing in the action because the litigation privilege of Civil Code section 47, subdivision (b), did not apply to immunize conduct directed at nonparties.*fn2 The court issued a tentative decision granting the special motion to strike. Kemps did not request a hearing, and the court entered its order striking the second amended complaint.

Kemps filed a timely notice ...


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