APPEAL from a judgment of the Superior Court of Los Angeles County, Mel Red Recana, Judge. Reversed with directions. (Los Angeles County Super. Ct. No. BC291148)
The opinion of the court was delivered by: Kriegler, J.
CERTIFIED FOR PUBLICATION
An attorney provided an affidavit for his client to submit to a
foreign court. The result in the foreign court could have influenced
the determination of issues pending in a California court. The
foreign court denied the application. Plaintiff amended her complaint
to allege a cause of action against the attorney and his law firm for
malicious prosecution based on the affidavit. The attorney filed a
special motion to strike under the anti-SLAPP statute,*fn1
Code of Civil Procedure section 425.16.*fn2
The trial court denied the motion on the ground that filing an
affidavit in a foreign court is not an act in furtherance of the right
of petition or free speech under the United States or California
Constitution. We hold that the attorney's affidavit, which was filed
in a foreign court in order to influence the determination of issues
pending in a California court, qualifies for protection under the
anti-SLAPP statute as a writing made in connection with an issue under
consideration by a judicial body. Plaintiff failed to show a
probability of prevailing on her malicious prosecution claim.
Therefore, we reverse the order denying the motion to strike with
FACTS AND PROCEDURAL BACKGROUND
Underlying Proceedings in Zimbabwe and Los Angeles
Plaintiff and respondent Topaz Summerfield*fn3 was raised in Zimbabwe. She moved to Los Angeles in 1987, but each year she returned to Zimbabwe to visit her parents. In January 2002, her sister Jacaranda Summerfield and her former brother-in-law Edward Galante were embroiled in contentious divorce proceedings. Jacaranda removed all of the property from the marital residence with her parents' assistance and stored it in various locations, including her parents' home. On January 8, 2002, without informing Galante, Jacaranda left Zimbabwe with their children and relocated to Northern California.
On January 22, 2002, Topaz arrived in Zimbabwe with her two-year-old daughter Sable Summerfield for their annual visit. Galante discovered the marital property was no longer at the marital residence. Galante obtained a writ of arrest against Topaz and her parents by alleging that Topaz and her parents assisted Jacaranda in removing Galante's property, had possession of valuable items, and intended to flee Zimbabwe. Topaz was arrested at her parents' home and stayed overnight in a Zimbabwe prison with Sable. She relinquished her passport and return airline ticket to Galante in exchange for her release.
On March 18, 2002, Topaz and her parents filed an affidavit opposing the writ of arrest. The Summerfield parents returned some of the property to Galante and Jacaranda provided information about the disposition of the remaining property. In August 2002, Galante filed an answering affidavit. In December 2002, after a contested hearing, the Zimbabwe court issued a final order in the writ of arrest case. The Zimbabwe court found in pertinent part: "[Galante] failed, in his papers, to show that [Topaz] had anything to do with the removal of property from [the marital residence]. All he could say was [Topaz] travelled to Zimbabwe, for reasons not clear to him but which he believes relate to the divorce between him and his wife. He did not establish a basis for such belief. Her only 'crime,' as was submitted by [her] counsel, was to arrive in the country for her annual holiday on the same day that her sister departed for the USA. I therefore find no basis to confirm the order in respect of [Topaz]." The Zimbabwe court concluded that the order was moot as to the Summerfield parents due to the subsequent acts and information concerning the property. The court discharged the writ of arrest, entered judgment against Galante, and ordered him to pay the costs of Topaz and her parents. Topaz and Sable returned to California.
On February 27, 2003, Topaz filed a complaint against Galante in Los Angeles on behalf of herself and Sable. A jury trial was held in September 2005 on causes of action for false arrest with warrant, false imprisonment, malicious prosecution, abuse of process, and intentional infliction of emotional distress. Galante was represented by attorney Donald Randolph and his law firm Randolph & Associates (collectively "Randolph") in the Los Angeles proceedings.
The trial court determined as a matter of law, based on the final order in the Zimbabwe writ of arrest case and the evidence presented at trial, there was no probable cause for the writ of arrest issued against Topaz. The court's determination simplified the issues remaining for the jury. After deliberation, the jury found in favor of Galante as to all causes of action. Topaz appealed from the judgment. In October 2007, this court found 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. The judgment was reversed and remanded for a new trial as to those causes of action.
On April 23, 2009, Galante filed an application in the Zimbabwe 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. Randolph explained the proceedings in Los Angeles. He stated two reasons for Galante's belated appeal: 1) Galante's Zimbabwe counsel had not anticipated the interpretation of the Zimbabwe order under California law; and 2) new evidence in the California case established Topaz's culpability in aiding and abetting her parents' possession and concealment of Galante's property.
As to the interpretation of the judgment, Randolph declared, "In the [Los Angeles case, Topaz] now argues that their claims for false arrest and imprisonment are automatically meritorious, as a matter of law, solely due to the fact that the [Zimbabwe] Judgment invalidated the provisional order which authorized the arrest and imprisonment of Topaz Summerfield. [T]his is an argument that, in 2003, Galante's Zimbabwe counsel would not have anticipated or understood."
With respect to new evidence, Randolph noted that the Zimbabwe court discharged the writ of arrest against Topaz based solely on evidence that she did not remove Galante's property. Randolph argued that Topaz's testimony during the Los Angeles trial established that she was involved, however, in the possession and concealment of the property from the sheriff and Galante. Topaz testified that she was living at her parents' residence during the month of February 2002. When her parents were not home, she was the adult in charge of the property. Topaz was present on four occasions when the deputy sheriff searched the house. She was aware that the deputy sheriff was looking for certain property, including paintings. Topaz also knew Jacaranda had stored paintings in the house. Topaz had seen paintings in the house. She did not know which paintings they were and did not match them to the paintings on the deputy sheriff's list, but she presumed they were paintings that the deputy sheriff was looking for. After the deputy sheriff left the house, the paintings were still there. Topaz discussed the paintings with her parents, but never suggested calling the sheriff to turn over the paintings. Topaz had planned to drive to South Africa with her parents at one point, but their plans changed.
Randolph argued that this testimony showed Topaz was in possession of the house and had custody and control over items located at the residence. He declared that the testimony constituted new evidence establishing Topaz's culpability which ...