Defamation? In Family Court?

L.G. v. M.B., No. B284742 (D2d2 Jul. 13, 2018)

Former Nanny is suing Wife for allegedly defamatory statements Wife made about Nanny in a declaration Wife filed in support of a domestic violence restraining order her divorce case. I’m not going to get into the seamy details—there’s a reason why I try to avoid family law—but a hunch and twenty seconds of the google confirmed my suspicion that this is a b-level celebrityish thing.

Anyway, this is an anti-SLAPP appeal. Nobody debates that the case arises from protected activity, because a declaration filed in court clearly meets the test. The case comes down to the whether the Civil Code § 47(b)(1) litigation privilege makes Nanny’s case unwinnable.

Section 47(b)(1) contains an exception, colloquially called the “divorce provisio,” which seems to be intended to stop people from needlessly defaming nonparties in divorce court filings. Notwithstanding regular § 47(b), a statement in any document filed in a divorce proceeding, about someone from whom no relief is sought in the divorce, is not privileged unless: (1) it’s under oath; (2) it’s made without malice by someone who has probable cause to believe it’s true; and (3) it’s material and relevant to the issues in the divorce case. So the proviso basically turns an otherwise absolute privilege into a qualified one. 

Although the proviso has been around for a long time, the court’s basically working on a blank slate. The only case to address it—Silberg v. Anderson, 50 Cal. 3d 205, 211 (1990)—did so only in dicta, without addressing the language of the statute. The Supreme Court just used it an expressio unius to hold that, exclusio alterious, § 47(b) doesn’t permit nonstatutory exceptions to the litigation privilege. The parties and an amicus duke it out over their efforts to over-determine various stray language from Silberg, but the court really doesn’t find it all that helpful.

Instead, it just walks through the statute. Wife and amicus try to argue that a DVRO petition isn’t filing for divorce and that it could be filed independently outside of a divorce proceeding. That might be true, but the application here was nonetheless “filed in” the divorce case, which the court finds sufficient based on the statutory text. Amicus also makes several policy arguments about why § 47(b)(1) should be read narrowly to exclude DVRO applications. The Court—while recognizing the policy goals espoused by amicus to be persuasive—finds that they nonetheless don’t merit giving the statute an atextual reading.

The court goes on to find that the family court’s granting of the DVRO can’t have any preclusive effect as to probable cause to make the statements—akin to the interim adverse judgment rule in a malicious prosecution case. The record in those cases doesn’t reflect whether the court ever passed on the truth or merit of the statements in its orders. And, logically speaking, the court wouldn’t necessarily have to find them credible to issue the relief it did.

And since Wife didn’t try to establish that the qualified privilege nonetheless applied on the facts, Nanny had met her burden in opposing the motion.

Affirmed.