In Karnazes v. Ares, B246308, the Court of Appeal recently extended the protections of the litigation privilege under Civ. Code Section 47 (b) to communications between parties made in anticipation of litigation.  In that case, an attorney represented one of the defendants in an action brought by a woman who alleged negligence and fraud, among other causes of action, in relation to investment advice.  The attorney was sued along with his client based upon the attorney’s email exchange with the plaintiff, in which he denied his client’s liability and stated that if his client were sued, he would represent him.  The plaintiff disputed that the communications were made by the attorney in his role as an attorney for his client.

When the complaint was filed, the plaintiff alleged that these communications were evidence of fraudulent activity. A motion to strike under the anti-SLAPP statute, Code Civ. Proc. Section 425.16(b(1)), was filed on the grounds that the communications were privileged as they were made in furtherance of a person’s right to petition or free speech under the United States Constitution or the California Constitution in connection with a public issue. (Section 425.16(e).)

To avoid a SLAPP motion to dismiss, a plaintiff has to establish that there is a probability that the plaintiff will prevail on the claim. This evaluation requires a two-step process in the trial court. First, the court must decide whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. If so, then the court must consider whether the plaintiff has demonstrated a probability of prevailing on the claim. If it is determined that the cause of action arose from protected speech and that it lacks even minimal merit, it is subject to being stricken under the statute.

The court held that protected written or oral statements made in connection with judicial proceedings also included communications made preparatory to or in anticipation of such proceedings. Here, the communications by the attorney postured why his client would not be criminally liable and should prevail on the merits, and cautioned the pro per plaintiff not to directly contact his client. In response, the plaintiff failed to submit any factual evidentiary showing that respondent made any specific misrepresentation or that she relied on any to her detriment or to her damage. All of this was held to be protected speech.

The communications giving rise to a fraud claim were innocuous enough and the fact that the attorney was sued could be better explained by the fact that the plaintiff represented herself in pro per. That said, communications made in the heat of a dispute should be carefully considered to stay within the now-protected sphere of a SLAPP motion. The privilege may be lost, for instance, if what is said is not protected speech such as hate speech, defamatory speech, or speech that threatens criminal action rather than civil litigation.

The good result here is a decision that holds that the back-and-forth communications of parties who are disagreeing on legal rights and obligations are privileged if made in anticipation of a lawsuit, and, if it is apparent that litigation is a possible outcome, can be attacked under the anti-SLAPP statute.