Filed 10/26/22 Timothy W. v. Julie W. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
TIMOTHY W.,
Plaintiff and Appellant, G059429
v. (Super. Ct. No. 30-2019-01101730)
JULIE W., OPINION
Defendant and Appellant;
RONNIE DEAN ECHAVARRIA SR.,
Defendant and Respondent.
Appeal from an order of the Superior Court of Orange County, Gregory H.
Lewis, Judge. Affirmed in part and reversed in part,
The Law Office of Douglas S. Honig and Douglas S. Honig for Plaintiff
and Appellant.
Smith LC, Stephanie P. Alexander and John S. Clifford for Defendant and
Appellant.
Ropers Majeski, German Ariel Marcucci and Terry Anastassiou for
Defendant and Respondent.
* * *
This appeal and cross-appeal involves a couple who were undergoing
dissolution proceedings, Timothy W. and Julie W. (Timothy and Julie, respectively). The
underlying dispute in the case before us relates to Julie’s disclosure of certain facts about
Timothy’s past (the sensitive information) that Julie revealed to her codefendant and
private investigator, Ronnie Dean Echavarria, Sr. (Echavarria), in connection with the
dissolution case. Echavarria revealed the sensitive information to at least one other
person, which resulted in several other individuals learning the information. Timothy
filed a civil case against Julie and Echavarria (defendants), alleging 12 separate causes of
action (although many of them were duplicative or not properly pleaded as separate
claims). Defendants filed motions pursuant to Code of Civil Procedure section 425.16
1
(the anti-SLAPP statute). The trial court granted the motions as to 10 of the 12 causes of
action, all based in tort, and denied the motion as to two contract-based claims. Timothy
now appeals, arguing the court erred by granting the motion. Julie cross-appeals, arguing
the remaining two causes of action should also have been dismissed.
We conclude that Timothy’s claims directly arose from the dissolution case
and that all of the claims are barred by the litigation privilege. His contract claims are
barred on several additional grounds. Accordingly, we find that the trial court properly
granted defendants’ anti-SLAPP motion as to the tort claims and incorrectly denied it as
to the two breach of contract claims. We therefore affirm the court’s order in part and
reverse in part.
1
Subsequent statutory references are to the Code of Civil Procedure unless otherwise
indicated.
2
I
FACTS
Timothy and Julie were married in 1995. According to Julie, Timothy had
a gambling problem and lost significant amounts of money by participating in illegal
sports betting. Sometime after their marriage, based on an alleged promise to keep the
disclosure confidential in perpetuity, Timothy disclosed the sensitive information to
2
Julie. Timothy’s briefing refers to this promise as a “contract.” Later, according to
Julie, she believed Timothy disclosed the sensitive information as a way to excuse his
gambling losses. In 2009, the FBI visited their home and spoke with Timothy. Timothy
told Julie he was questioned about sports betting by a friend of his. Julie did not believe
this, and thought they were there asking Timothy about his own gambling, and
potentially, an incident of financial wrongdoing related to the sensitive information.
In June 2018, Timothy filed for divorce, and the couple apparently
separated. By October, Timothy was romantically seeing a woman named Ashley K.
(Ashley). Ashley was previously married to Chris K. (Chris) and had been legally
separated from him since April 2018. Ashley and Chris had a two-year-old daughter.
Timothy alleged that Julie’s neighbors saw Timothy and Ashley at a concert together in
October and told Julie about it.
A few days later, Julie hired Echavarria, a former police detective, for
private investigation services. According to Julie, she hired Echavarria, in part, to find
out why the FBI had visited their home in 2009 with respect to the financial wrongdoing
related to the sensitive information. She also believed Timothy was hiding community
assets.
2
Because it is not necessary to decide the case, we do not include the sensitive
information in the opinion.
3
Julie also disclosed the sensitive information to Echavarria and made
numerous unflattering statements about Timothy’s demeanor and temper, including that
he was potentially dangerous to children.
In January 2019, Echavarria disclosed the sensitive information to Chris,
who disclosed it to Ashley, and allegedly stated that Timothy was a danger to their
daughter. Ashley then disclosed the information to her uncle, who disclosed it to his
girlfriend. According to Julie, she did not tell Echavarria to share the sensitive
information with Chris, although Echavarria testified later that Julie told him Chris
“should know” the information. The sensitive information was also disclosed to Julie’s
divorce attorney, Angel Camino. In sum, Julie disclosed the sensitive information herself
to Echavarria and Camino. Echavarria’s disclosure to Chris resulted in three other
people—Ashley, her uncle, and the uncle’s girlfriend. Therefore, a total of six people
learned the sensitive information as the result of Julie’s disclosures. There is no
indication the information has gone beyond that group.
In July 2019, Timothy filed a request for a domestic violence restraining
order against Julie, on the grounds that Julie had “been spreading information about me,
including false accusations, to . . . third parties with the hope that it will damage me in
some way.” Julie’s opposition set forth numerous incidences of abuse during the
marriage and stated that she was afraid for her life and that Timothy had falsely reported
to the police that she was a suicide risk. The opposition also discussed a loud verbal
altercation between Timothy and Chris that had taken place during a custody exchange
between Ashley and Chris. The request was ultimately resolved through a stipulated
order in which Julie agreed not to disclose or discuss the sensitive information with
anyone except her attorneys.
In October 2019, while the dissolution case was pending, Timothy filed the
instant civil case against defendants. His first amended complaint alleged 12 causes of
action: (1) Breach of Oral Contract; (2) Breach of Oral Contract (Specific Performance);
4
(3) Breach of Implied Covenant of Good Faith and Fair Dealing; (4) Breach of Fiduciary
Duty; (5) Breach of Obligation of Confidential Relationship and Communications; (6)
Intentional Infliction of Emotional Distress; (7) Negligent Infliction of Emotional
Distress; (8) Negligence; (9) Gross Negligence; (10) Invasion of Privacy (Including
Public Disclosure of Private Facts); (11) Defamation; and (12) Injunctive Relief
(Temporary Restraining Order, Preliminary Injunction, And Permanent Injunction).
Echavarria was named in all claims except for breach of oral contract and “breach of
obligation of confidential relationship and communications.” (Boldfacing &
capitalization omitted.)
During the pendency of the case, Timothy filed repeated requests to seal all
or part of the record, both ex parte and through noticed motions. Julie opposed. In
January 2020, the court denied the motion to seal the entire court file, but granted the
motion to seal as to certain specified documents. That order stated: “The court finds that
Plaintiff met his burden under CRC rule 2.550(c) to establish the five factors necessary to
seal the record.” As the matter progressed, the court granted other requests to seal certain
documents.
In November 2019, defendants filed the instant anti-SLAPP motions,
seeking to dismiss some or all of Timothy’s first amended complaint. Timothy opposed,
and defendants filed their individual replies. On July 27, 2020, the court granted Julie’s
motion as to the third through twelfth causes of action, leaving only the two breach of
contract claims. As to Echavarria, the court granted his motion in its entirety. The court
concluded the fourth through twelfth causes of action, which were based in tort, were
barred by the litigation privilege, which also precluded the third cause of action for
breach of the implied covenant of good faith and fair dealing. The court’s analysis of the
breach of contract claims in its written order was limited to finding those claims were not
barred by litigation privilege.
5
Timothy filed a petition for a writ of mandate, which was denied. Julie
filed a motion for and was granted attorney fees of $88,561.25 as prevailing party on the
anti-SLAPP motion. Echavarria was granted $115,060 in attorney fees. Those orders are
the subject of a related appeal.
The instant appeal and cross-appeal address the merits of the anti-SLAPP
motion.
II
DISCUSSION
A. Motions to Seal
Timothy moves to seal both the briefs and the record on appeal and
submitted both to this court conditionally under seal with redacted documents available to
the public. The court may order that a record be filed under seal only if it finds facts that
establish: 1) there exists an overriding interest that overcomes the right of public access
to the record; 2) the overriding interest supports sealing the record; 3) a substantial
probability exists that the overriding interest will be prejudiced if the record is not sealed;
4) the proposed sealing is narrowly tailored; and 5) no less restrictive means exist to
achieve the overriding interest. (Cal. Rules of Court, rule 2.550(d); see NBC Subsidiary
(KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178.) We must weigh the
competing interests at hand, which is difficult without describing the sensitive
information. We have reviewed those interests, and we find good cause exists to grant
the motions to seal.
B. Anti-SLAPP Statutory Framework and Standard of Review
Because the appeal and cross-appeal address the same legal issues for
different causes of action, we shall address them together as much as is practical. The
anti-SLAPP statute states: “A cause of action against a person arising from any act of
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that person in furtherance of the person’s right of petition or free speech under the United
States Constitution or the California Constitution in connection with a public issue shall
be subject to a special motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1).) The purpose of the anti-SLAPP statute is to dismiss meritless
lawsuits designed to chill the defendant’s free speech rights at the earliest stage of the
case. (See Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2, disapproved
on another ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53,
67-68, fn. 5.) The statute is to “be construed broadly.” (§ 425.16, subd. (a).)
Section 425.16, subdivision (e) defines an “‘act in furtherance of a person’s
right of petition or free speech . . . in connection with a public issue’” as: “(1) any
written or oral statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law; (2) any written or oral
statement or writing made in connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official proceeding authorized by
law; (3) any written or oral statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest; (4) or any other conduct in
furtherance of the exercise of the constitutional right of petition or the constitutional right
of free speech in connection with a public issue or an issue of public interest.”
Once we determine that the anti-SLAPP statute applies, the burden then
shifts to the plaintiff to demonstrate a probability of prevailing. (Dowling v. Zimmerman
(2001) 85 Cal.App.4th 1400, 1417.) If the plaintiff does so, the motion to strike under
the anti-SLAPP statute must be denied. To establish the requisite probability of
prevailing, the plaintiff must state and substantiate a legally sufficient claim. (Briggs v.
Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1122-1123.) “Put another
way, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and
supported by a sufficient prima facie showing of facts to sustain a favorable judgment if
7
the evidence submitted by the plaintiff is credited.’” (Wilson v. Parker, Covert &
Chidester (2002) 28 Cal.4th 811, 821.) We review the trial court’s decision on an anti-
SLAPP motion de novo. (Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th
1456, 1466.)
C. Protected Activity
The first step of the anti-SLAPP analysis requires us to decide whether the
challenged claims arise from defendants’ acts in furtherance of their right of free speech
or right of petition. (§ 425.16, subd. (e).)
“A claim arises from protected activity when that activity underlies or
forms the basis for the claim.” (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1062-1063.) “[T]he focus is on determining what ‘the defendant’s
activity [is] that gives rise to his or her asserted liability—and whether that activity
constitutes protected speech or petitioning.’” (Ibid.)
Timothy argues that Julie is not entitled to anti-SLAPP protection because
her statements were not made in front of a tribunal of any kind. But it has been widely
held that conduct concerning litigation that takes place outside of court may be protected
under the anti-SLAPP statute. In the anti-SLAPP context, “‘[a]ny act’ includes
communicative conduct such as the filing, funding, and prosecution of a civil action.”
(Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) This includes conduct ranging from
filing an insurance claim as a prerequisite to litigation (People ex rel. Fire Ins. Exchange
v. Anapol (2012) 211 Cal.App.4th 809, 825), to counseling a tenant in anticipation of
litigation (Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1109-
1115), to soliciting litigation by others (Rubin v. Green (1993) 4 Cal.4th 1187), to
communications in the course of settlement negotiations (Seltzer v. Barnes (2010) 182
Cal.App.4th 953, 963-964).
8
The basis for all of Timothy’s claims is that Julie communicated the
sensitive information to Echavarria, and Echavarria communicated it to others.
Echavarria was hired in furtherance of the ongoing dissolution proceedings to conduct a
financial investigation, which included Timothy’s gambling debts and alleged financial
wrongdoing relating to the sensitive information. Echavarria testified that the purpose of
the disclosure to Chris was to share information that could be helpful in both Julie and
Chris’s divorce proceedings.
Timothy vastly overstates the connection that must exist between the
alleged conduct and judicial proceedings, claiming that Julie must “prove that: (1) she
understands the legal significance of the [dissolution] issues and (2) the legal causal
connection between the [sensitive information] and those issues.” The case he cites,
Trilogy Plumbing Inc. v. Navigators Specialty Ins. Co. (2020) 50 Cal.App.5th 920, which
has an entirely different factual context, simply does not support such a stringent test.
Timothy further ignores the statutory requirement that anti-SLAPP motions are to be
construed broadly. He also claims that statements are only subject to an anti-SLAPP
motion if Chris had an “interest” in the divorce, a claim again supported by a quotation
from a case in a very different factual context. (Neville v. Chudacoff (2008) 160
Cal.App.4th 1255, 1266.)
In sum, Timothy claims the issues Echavarria was hired to investigate are
only “incidental” and irrelevant to his complaint, but this statement misses the boat
3
entirely. According to Julie, the entire reason for her disclosure of the sensitive
information to Echavarria was due to the financial investigation she wanted Echavarria to
undertake. Because that investigation included a financial misdeed directly related to the
sensitive information, disclosing it was necessary for Echavarria to do his job. “We note
that section 425.16, subdivision (e)(2), ‘has been held to protect statements to persons
3
Timothy also claims that the court did not rule on his various evidentiary objections.
The objections that he mentions in his brief are not pertinent to our decision.
9
who are not parties or potential parties to litigation, provided such statements are made
“in connection with” pending or anticipated litigation.’” (Summerfield v.
Randolph (2011) 201 Cal.App.4th 127, 136.)
Defendants cite Contemporary Services Corp. v. Staff Pro Inc. (2007) 152
Cal.App.4th 1043. In that case, the parties were competitors, and while litigation was
pending between them, the defendant sent an e-mail to nine of its own clients, who were
not parties to the case, stating that the plaintiff had paid defendant’s former employees to
make false statements in declarations in order to discredit defendant to its clients. The
court held that sending the e-mail fell within the anti-SLAPP statute because it described
the parties’ contentions and the audience consisted of persons who were witnesses or
potential witnesses. (Id. at pp. 1053-1055.) Julie’s statements to Echavarria, including
disclosing the sensitive information, are cut from the same cloth. Echavarria was
retained in connection with her pending dissolution proceeding, and he spoke to Chris
because Chris’s estranged wife was now in a relationship with Timothy and might have
information relevant to the dissolution proceedings.
Further, in Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, a
rumor began circulating that the city manager of Morgan Hill (the city) was having an
affair with the city attorney. A member of the city council retained attorney Bruce
Tichinin, who hired a private investigator to conduct surveillance of the city manager.
Tichinin was also representing two clients in matters before the city council at that time.
(Id. at pp. 1055-1056.) In short, the city manager eventually realized he was being
followed, and Tichinin, when asked, first denied being responsible for the surveillance
before admitting it and apologizing. (Id. at pp. 1058-1059.) The city council adopted a
resolution condemning Tichinin and demanding his resignation from a city committee.
Tichinin subsequently filed an action in state court pursuant to title 42 United States Code
section 1983 (section 1983). The city filed an anti-SLAPP motion, which the court
granted. (Id. at pp. 1055-1056.)
10
The appellate court reversed the trial court’s decision to grant the motion.
(Tichinin v. City of Morgan Hill, supra, 177 Cal.App.4th at p. 1056.) The first prong of
the anti-SLAPP analysis was easy to satisfy because Tichinin’s claims were based on the
city council’s reports, hearing, and resolution condemning him. (Id. at p. 1061.) Because
Tichinin’s claim was under section 1983, the court also had cause to analyze, in the
second prong, whether the act of hiring a private investigator was protected under the
rights of free speech and petition. (Id. at p. 1064.) The court found that it was protected
activity under the Noerr-Pennington doctrine. “[T]he investigation of a potential claim is
normally and reasonably part of effective litigation, if not an essential part of it.”
(Tichinin, at pp. 1068-1069.) Although procedurally different, the same reasoning
applies here – investigation is an essential part of litigation, and therefore, the act of
hiring a private investigator in connection with potential or actual litigation falls within
the protections of the anti-SLAPP statute.
Timothy’s contention that defendants are not entitled to anti-SLAPP
protection because of their “unlawful” behavior, citing Flatley v. Mauro (2006) 39
Cal.4th 299, 320-321, is simply wrong. That case does not apply to untoward behavior or
even behavior that violates a statute. As it makes clear, it is a narrow exception that only
applies to conduct that is criminal as a matter of law. Further, it applies only “where
either the defendant concedes the illegality of its conduct or the illegality is conclusively
shown by the evidence.” (Id. at p. 316.) In Flatley, the conclusive evidence was an
extortionate letter from the defendant. (Id. at pp. 307-309; see Dziubla v. Piazza (2020)
59 Cal.App.5th 140, 151.) There is no such conclusive evidence of any crime here,
4
despite Timothy’s efforts to fit the instant facts into that very narrow definition.
4
The “crime” points to with regard to Echavarria is a violation of Business and
Professions Code section 7561.4, subdivision (a), which gives the relevant state agency
the power to revoke a private investigator’s license if the licensee “knowingly publish[es]
a slander or a libel in the course of business.” It is, of course, disputed whether there was
any slander whatsoever.
11
Timothy also argues that both defendants waived their right to the
protection of the anti-SLAPP law because of Julie’s purported confidentiality agreement
and “marital contract” – Julie directly and Echavarria as her agent. He relies completely
on his allegation that such an agreement or contract existed to support this tenuous
argument. The trial court correctly determined that Timothy had not established waiver
by clear and convincing evidence, citing Waller v. Truck Ins. Exchange, Inc. (1995) 11
Cal.4th 1, 31. Timothy claims he “submitted substantial evidence to prove that Julie
intentionally relinquished her right to speak” but this “evidence” was completely
contradicted by Julie’s evidence on the matter and came nowhere close to establishing
waiver.
Defendants have satisfied their burden to demonstrate the conduct that is
now the subject of Timothy’s lawsuit was in connection with a pending judicial
proceeding. Accordingly, the anti-SLAPP statute applies.
D. Prima Facie Case
“If the court determines that relief is sought based on allegations arising
from activity protected by the statute, the second step is reached. There, the burden shifts
to the plaintiff to demonstrate that each challenged claim based on protected activity is
legally sufficient and factually substantiated. The court, without resolving evidentiary
conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact,
would be sufficient to sustain a favorable judgment. If not, the claim is stricken.” (Baral
v. Schnitt (2016) 1 Cal.5th 376, 396.)
1. Litigation Privilege on Tort Claims
A plaintiff cannot establish a prima facie case if the litigation privilege
precludes a defendant’s liability on the claim. (Flatley v. Mauro, supra, 39 Cal.4th at
pp. 323-324.) “The litigation privilege, codified at Civil Code section 47, subdivision
12
(b), provides that a ‘publication or broadcast’ made as part of a ‘judicial proceeding’ is
privileged. This privilege is absolute in nature, applying ‘to all publications, irrespective
of their maliciousness.’ [Citation.] ‘The usual formulation is that the privilege applies to
any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or
other participants authorized by law; (3) to achieve the objects of the litigation; and (4)
that [has] some connection or logical relation to the action.’ [Citation.] The privilege ‘is
not limited to statements made during a trial or other proceedings, but may extend to
steps taken prior thereto, or afterwards.’” (Action Apartment Assn., Inc. v. City of Santa
Monica (2007) 41 Cal.4th 1232, 1241.)
“The litigation privilege is a statutory protection that has been interpreted
expansively.” (Dziubla v. Piazza, supra, 59 Cal.App.5th at p. 155.) “‘[D]oubts are
resolved in favor of the privilege.’” (Wang v. Heck (2012) 203 Cal.App.4th 677, 684.)
“‘In the anti-SLAPP context, the litigation privilege presents “a substantive defense a
plaintiff must overcome to demonstrate a probability of prevailing.”’” (Crossroads
Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 785-786.)
The purpose of the litigation privilege “‘is to afford litigants and witnesses
[citation] the utmost freedom of access to the courts without fear of being harassed
subsequently by derivative tort actions.’” (Action Apartment Assn., Inc. v. City of Santa
Monica, supra, 41 Cal.4th at pp. 1241-1242.) The privilege also grants “‘litigants and
witnesses free access to the courts without fear of being harassed subsequently by
derivative tort actions, to encourage open channels of communication and zealous
advocacy, to promote complete and truthful testimony, to give finality to judgments, and
to avoid unending litigation.’” (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955-
956.) The only recognized exception to the privilege is actions for malicious prosecution.
(Silberg v. Anderson (1990) 50 Cal.3d 205, 215-216.)
Here, there is no question that Julie’s statements to Echavarria and
Echavarria’s statements to Chris were in the context of ongoing marital dissolution
13
proceedings. Such conduct is communicative, which is a necessary element of the
litigation privilege. (Rusheen v. Cohen, supra, 37 Cal.4th at pp. 1057-1058.) The
statements were made by Julie herself and by Echavarria, who Timothy argues numerous
times was her agent. There is no reasonable dispute that these communicative acts form
the basis for all of Timothy’s claims. Julie was a litigant in the proceedings, and
Echavarria, as an investigator, was authorized to conduct an investigation on her behalf.
Further, the statements by Julie to Echavarria were made to achieve the
goals of the litigation, specifically, to help Echavarria conduct his financial investigation.
Despite Timothy’s claims to the contrary, the statements were not incidental. Once
again, he attempts to give the narrowest possible interpretation to the law. “‘The terms
“related to” or “connected with” necessarily require more than a remote relationship or
common factual genesis between two otherwise unconnected subjects. To come within
the privilege, the fact communicated itself must have some bearing on or connection with
the subject matter of the litigation.’” (Nguyen v. Proton Technology Corp. (1999) 69
Cal.App.4th 140, 149.)
In this case, Echavarria was conducting a financial investigation which
included whether Timothy was hiding marital assets. The sensitive information included
financial wrongdoing directly related to that information. Echavarria also reached out to
Chris, the estranged husband of Timothy’s new romantic partner, with the hope that they
might share information relevant to both divorce proceedings. Therefore, Echavarria’s
communications with Chris satisfy the test of having a connection to the subject matter of
the litigation. Accordingly, given the breadth of the litigation privilege, we find the trial
court correctly decided that the third through twelfth causes of action were barred as to
both defendants.
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2. The Breach of Contract Claims
First, we dispense with any claim that Echavarria can be held liable for
breaching a contract he never entered into. Timothy does not provide any cognizable
argument to the contrary, simply asserting that “there was a valid contract.” Timothy has
not met his burden to establish a breach of contract claim against Echavarria.
Second, the cause of action for “Breach of Oral Contract Specific
Performance,” against Julie must also fall. “‘[S]pecific performance and injunctive relief
are equitable remedies and not causes of action for injuries.’” (Mesa Shopping Center-
East, LLC v. O Hill (2014) 232 Cal.App.4th 890, 901.) A remedy must have a cause of
action to support it. Accordingly, Timothy cannot prevail on a cause of action for
“‘specific performance.’” We therefore conclude the trial court erred by not granting the
anti-SLAPP motion as to the second cause of action.
Third, we examine the competing arguments about whether the litigation
privilege applies to breach of contract claims. Breach of contract claims are not
categorically excluded from the privilege. Rather, if it applies turns on whether the
5
privilege furthers the purposes behind it based on the underlying facts. (Wentland v.
Wass (2005) 126 Cal.App.4th 1484, 1492; see Mission Beverage Co. v. Pabst Brewing
Co., LLC (2017) 15 Cal.App.5th 686, 709-710; McNair v. City and County of San
Francisco (2016) 5 Cal.App.5th 1154, 1169.)
In the case Timothy relies on, Crossroads Investors, L.P. v. Federal
National Mortgage Assn., supra, 13 Cal.App.5th at pp. 787-788, the plaintiff alleged the
defendant breached a deed of trust by failing to follow California law during a
nonjudicial foreclosure proceeding. In that context, “[a]pplying the privilege to
Crossroads’ contract claims would not further the policies underlying the privilege. In
fact, it would defeat them.” Although the nonjudicial foreclosure proceeding was
5
The California Supreme Court granted review on this issue in Olson v. Doe (2022) 12
Cal.5th 669, 687, but ultimately did not reach it.
15
litigation-related conduct, applying the privilege would not serve the purpose of free and
open access to the courts – rather, it would defeat those aims by allowing a defendant to
violate California foreclosure law with no remedy. (Id. at p. 788.)
The case at bar, however, is quite different. The purposes of the litigation
privilege are served, not frustrated, by applying the litigation privilege to Timothy’s
claim for breach of oral contract. A litigant must have the freedom to hire and speak to
an investigator during pending litigation without the fear that her words could be the
subject of collateral litigation. Accordingly, we find that the litigation privilege applies
to the breach of contract claim against Julie.
Finally, even if the litigation privilege was inapplicable, Timothy’s breach
of contract claim is barred by Family Code section 1620. That section states: “Except as
otherwise provided by law, spouses cannot, by a contract with each other, alter their legal
relations, except as to property.” (Fam. Code, § 1620.) “‘Property’ means an interest,
present or future, legal or equitable, vested or contingent, in real or personal property,
including income and earnings.” (Fam. Code, § 1610, subd. (b).) A contract purporting
to hold one spouse liable for revealing the secret of another would, indeed, “alter their
legal relations.” It would create a separate agreement that, according to Timothy, would
last beyond the marriage itself. Because it does not deal with “property,” as defined by
Family Code section 1620, the alleged oral agreement is void as a matter of law.
Timothy’s arguments as to why Family Code section 1620 should not apply
to the purported contract here are without merit. First, he argues it was not raised below
or relied upon by the trial court. A legal theory may be raised for the first time on appeal
as long as it presents a question of law to be applied to undisputed facts. (Hoffman–Haag
v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 15-16.) Timothy claims he was
entitled “to file a declaration stating that the . . . confidentiality agreement did not affect
the status of the parties nor did the parties intend that the confidentiality agreement
affected their marital status,” but that would have made no difference, as any such
16
assertions would have been legal conclusions and not facts within his personal
knowledge.
The relevant allegations in the complaint, not Timothy’s opinions, are what
control here. Those allegations were that the parties entered into a binding oral contract
under which Julie would forever keep the sensitive information a secret. The
consideration for this contract, as the complaint alleged, was to “improve and elevate
their relationship.” As a matter of law, if Timothy had the right to sue for breach of that
alleged contract, it “alter[ed] [the] legal relations” (Fam. Code, § 1620), between
Timothy and Julie. A binding contract, by its nature, alters legal relations between the
parties who enter into it, and married couples cannot do so under California law except
with respect to property.
Timothy next claims that if we give Family Code section 1620 this
interpretation, it is unconstitutional as a violation of his inalienable rights. This point is
not well-taken. As Julie points out, California law includes restrictions on the freedom to
contract, including multiple provisions of the Labor Code (see Lab. Code, §§ 219, 432.6,
1194), as well as Business and Professions Code section 16600, which prohibits contracts
that restrain trade or prohibit engaging in a lawful trade or profession. Timothy also
offers an offhanded statement that Family Code section 1620 unlawfully discriminates
against married people, but offers no authority or argument to support this ill-founded
claim, and it is therefore waived. (Paterno v. State of California (1999) 74 Cal.App.4th
68, 106.)
Given that Family Code section 1620 is a complete bar to the contract
alleged in the first cause of action, we find that Timothy has not established the minimal
merit required under the second prong of the anti-SLAPP statute. We therefore conclude
the trial court erred by not granting the anti-SLAPP motion as to the first cause of action.
Julie also offers a brief argument that the entire case is barred by the
primary jurisdiction doctrine. However, we find this argument is not fully developed and
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is only supported by citations to general principles of law. Therefore, we deem it waived.
(Paterno v. State of California, supra, 74 Cal.App.4th at p. 106.)
III
DISPOSITION
We affirm the trial court’s ruling granting the anti-SLAPP motion as to the
third through twelfth causes of action. We reverse the trial court’s ruling denying the
anti-SLAPP motion as to the first and second causes of action, and direct the court to
enter a new order granting the motion as to all causes of action.
Defendants are entitled to their costs on this appeal. As prevailing
defendants, both are also entitled to recover their attorney fees on appeal as a matter of
right. (§ 425.16, subd. (c)(1); see Carpenter v. Jack in the Box Corp. (2007) 151
Cal.App.4th 454, 461.) They may make the appropriate motions for attorney fees on
appeal in the trial court.
MOORE, ACTING P. J.
WE CONCUR:
GOETHALS, J.
SANCHEZ, J.
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