Supreme Court of California Justia
Docket No. S123203
Rusheen v. Cohen

Filed 2/23/06

IN THE SUPREME COURT OF CALIFORNIA

TERRY RUSHEEN,
Cross-Complainant
and
Appellant,
S123203
v.
Ct.App. 2/4 B152948
BARRY E. COHEN et al.,
Los Angeles County
Cross-Defendants
Super. Ct. No. EC022640
and
Respondents. )

Are actions taken to collect a judgment, such as obtaining a writ of
execution and levying on a judgment debtor’s property, protected by the litigation
privilege of Civil Code section 47, subdivision (b), as “communication[s]” in the
course of a judicial proceeding? In Brown v. Kennard (2001) 94 Cal.App.4th 40
(Brown), the Court of Appeal held that the privilege protects both the process of
applying for the writ of execution and the levy on the judgment debtor’s property,
as an act of carrying out the writ. On the other hand, in Drum v. Bleau, Fox &
Associates (2003) 107 Cal.App.4th 1009 (Drum), the Court of Appeal held that,
although the privilege protects the application for the writ of execution, it does not
extend to the subsequent, noncommunicative acts in levying on the property. We
granted review to resolve the conflict.
We conclude that where the cause of action is based on a communicative
act, the litigation privilege extends to those noncommunicative actions which are
1


necessarily related to that communicative act. In this case, because the claim for
abuse of process was based on the communicative act of filing allegedly false
declarations of service to obtain a default judgment, the postjudgment enforcement
efforts, including the application for writ of execution and act of levying on
property, were protected by the privilege. Because the Court of Appeal here came
to the contrary decision that the act of levying on property was not protected by
the privilege, we reverse its judgment.
I. FACTUAL AND PROCEDURAL HISTORY
This case arises from an action, filed as a cross-complaint, by Terry
Rusheen against Attorney Barry E. Cohen, individually, and Barry E. Cohen, a
professional corporation (collectively, Cohen), for abuse of process. The claims
are based on Cohen’s representation of clients in this case and in three earlier
proceedings against Rusheen.
A. The Earlier Lawsuits.
In the first of the earlier proceedings, Niki Han and Maurice Abikzer
applied for the issuance of a writ of possession of a house that they had bought
from Rusheen’s father (case No. ES004477). Rusheen, who lived there, refused to
move out after escrow had closed. In addition, Han and Abikzer sought an order
to show cause re harassment and a temporary restraining order against Rusheen.
Rusheen also filed two actions against Han and Abikzer separately, seeking his
own orders to show cause re harassment and temporary restraining orders (case
Nos. ES004472 and ES004476).
During a hearing on the three cases, the trial court ordered Rusheen to
move out and denied Rusheen’s applications for temporary restraining orders.
Han and Abikzer moved to declare Rusheen a vexatious litigant and to require him
to post a bond in each of the three cases. The court issued a stay preventing
2
Rusheen from filing any pleadings except those relevant to the pending vexatious
litigant motions.
B. The Current Case.
Before the vexatious litigant motions were heard, Cohen (as Han’s
attorney) filed a new action (the case before us now) for property damage, fraud,
assault and battery, and unjust enrichment (case No. EC022640).
After a hearing, the trial court found Rusheen to be a vexatious litigant and
ordered Rusheen to post a $15,000 cash bond to avoid a default judgment in favor
of Han and as a precondition to the filing of any pleadings. Rusheen did not file
opposition to the vexatious litigant motion and did not appear at the hearing.
Cohen filed a declaration of service signed by a process server, which was
later used to obtain Rusheen’s default. The process server declared, under penalty
of perjury, that he had personally served Rusheen with the summons, complaint,
and order declaring Rusheen a vexatious litigant.
Cohen moved for a default judgment. After Rusheen failed to post the
bond, a default judgment was entered. Han (through a Nevada attorney) filed a
notice of foreign judgment in Nevada, where Rusheen had moved, and began
executing on Rusheen’s property. The Nevada attorney applied for a writ of
execution and levied on the judgment.
Rusheen moved to vacate the default judgment and the vexatious litigant
orders on the ground the judgment was defective. Rusheen claimed he had no
notice of the vexatious litigant hearing and denied he was served with the
summons, complaint, and order declaring him a vexatious litigant. In opposition,
Cohen submitted declarations that stated Rusheen had been personally served with
the above documents and the motion to declare him a vexatious litigant. The trial
3
court denied the motion to vacate the default judgment, finding that Rusheen had
been personally served with the documents.
In an unpublished opinion, the Court of Appeal reversed the judgment. It
held there was insufficient evidence that Rusheen was a vexatious litigant and that
the trial court had no authority to order the posting of a $15,000 cash bond. It
remanded the case and ordered the trial court to grant Rusheen’s motion to vacate
the default judgment and vexatious litigant orders.
On remand, Rusheen initiated the cross-complaint—at issue here—against
Cohen for abuse of process arising from his legal representation. After various
procedural events, Rusheen filed a second amended cross-complaint, alleging that
Cohen had made an illegal vexatious litigant motion against Rusheen, failed to
serve the complaint properly, took an improper default judgment against him
without proper notice, permitted his client to execute on the judgment in Nevada,
and filed false declarations on the issue of service.
Cohen brought a special motion to strike the cross-complaint under the
anti-SLAPP statute (Code Civ. Proc., § 425.16), asserting that there was no
reasonable probability Rusheen would prevail because Cohen’s conduct was
privileged under Civil Code section 47, subdivision (b). The trial court agreed. It
granted the motion, struck the cross-complaint against Cohen, and entered
judgment for Cohen.
In an unpublished opinion, the Court of Appeal reversed the judgment. It
held that the trial court improperly granted the anti-SLAPP motion to strike,
finding that Cohen could be liable for abuse of process in enforcing a default
judgment obtained through the filing of allegedly false proofs of service. In
determining whether Cohen’s conduct fell within the litigation privilege, the court
followed Drum, supra, 107 Cal.App.4th 1009, rather than Brown, supra, 94
Cal.App.4th 40. It found that Cohen’s filing of allegedly perjured documents fell
4
within the litigation privilege as communicative conduct, but that his participation
in the alleged conspiracy to execute on the resulting improper default judgment
was unprivileged, noncommunicative conduct.1
We granted Cohen’s petition for review to determine: (1) whether actions
taken to collect a judgment, such as obtaining a writ of execution and levying on
the judgment debtor’s property, are protected by the litigation privilege as
communications in the course of a judicial proceeding; and (2) whether a claim for
abuse of process based on the filing of an allegedly false declaration of service is
barred by the litigation privilege on the ground the claim is necessarily founded on
a communicative act.2
II. DISCUSSION
Cohen maintains that Rusheen’s abuse of process claim is barred by the
litigation privilege and that the trial court properly granted his anti-SLAPP motion
(Code Civ. Proc., § 425.16). An appellate court independently reviews the trial
court’s order granting a special motion to strike under section 425.16. (Kajima
Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th
921, 929.) In evaluating the trial court’s order, we discuss the general legal
principles first and then their application to this case. As explained below, we
agree with Cohen’s contention.

1
In connection with the allegedly illegal vexatious litigant motion, the Court
of Appeal determined that Rusheen had not submitted sufficient evidence to
demonstrate that Cohen could be liable for abuse of process.
2
In his answer brief, Rusheen argues that Cohen abused the legal process in
connection with obtaining the vexatious litigant orders and other orders that are
not at issue in this appeal. Because those claims were not presented or fairly
included in the petition for review and Rusheen failed to file an answer to Cohen’s
petition for review, we do not address them. (Cal. Rules of Court, rule 29(b); In re
Marriage of Cornejo
(1996) 13 Cal.4th 381, 388, fn. 6.)
5


A. The Anti-SLAPP Statute.
A SLAPP suit—a strategic lawsuit against public participation—seeks to
chill or punish a party’s exercise of constitutional rights to free speech and to
petition the government for redress of grievances. (Briggs v. Eden Council for
Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.) The Legislature
enacted Code of Civil Procedure section 425.16—known as the anti-SLAPP
statute—to provide a procedural remedy to dispose of lawsuits that are brought to
chill the valid exercise of constitutional rights. (Lafayette Morehouse, Inc. v.
Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 865.)
In evaluating an anti-SLAPP motion, the trial court first determines
whether the defendant has made a threshold showing that the challenged cause of
action arises from protected activity. (Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 67.) Under Code of Civil Procedure section 425.16 “[a]
cause of action against a person arising from any act of that person in furtherance
of the person’s right of petition or free speech . . . shall be subject to a special
motion to strike. . . .” (Code Civ. Proc., § 425.16, subd. (b)(1).) “A cause of
action ‘arising from’ defendant’s litigation activity may appropriately be the
subject of a section 425.16 motion to strike.” (Church of Scientology v.
Wollersheim (1996) 42 Cal.App.4th 628, 648, disapproved on other grounds in
Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.)
“Any act” includes communicative conduct such as the filing, funding, and
prosecution of a civil action. (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8,
17-19.) This includes qualifying acts committed by attorneys in representing
clients in litigation. (See, e.g., Chavez v. Mendoza (2001) 94 Cal.App.4th 1083,
1086; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1418-1420.)
If the court finds the defendant has made the threshold showing, it
determines then whether the plaintiff has demonstrated a probability of prevailing
6
on the claim. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at
p. 67.) “In order to establish a probability of prevailing on the claim (Code Civ.
Proc., § 425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion
must ‘ “state [] and substantiate[] a legally sufficient claim.” ’ [Citations.] 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 the evidence submitted by the plaintiff is credited.’
[Citations.]” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)
B. The Tort of Abuse of Process.
The common law tort of abuse of process arises when one uses the court's
process for a purpose other than that for which the process was designed. (5
Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 459, p. 547; see also Kappel
v. Bartlett (1988) 200 Cal.App.3d 1457, 1463.) It has been “interpreted broadly to
encompass the entire range of ‘procedures’ incident to litigation.” (Barquis v.
Merchants Collection Assn. (1972) 7 Cal.3d 94, 104, fn. 4 (Barquis).)
"[T]he essence of the tort [is] . . . misuse of the power of the court; it is an
act done in the name of the court and under its authority for the purpose of
perpetrating an injustice." (Meadows v. Bakersfield S. & L. Assn. (1967) 250
Cal.App.2d 749, 753.) To succeed in an action for abuse of process, a litigant
must establish that the defendant (1) contemplated an ulterior motive in using the
process, and (2) committed a willful act in the use of the process not proper in the
regular conduct of the proceedings. (Oren Royal Oaks Venture v. Greenberg,
Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168 (Oren Royal Oaks
Venture).)
7
C. The Litigation Privilege.
The litigation privilege is codified in Civil Code section 47 (section 47):
“[a] privileged publication or broadcast is one made . . . [i]n any . . . judicial
proceeding . . . .” (§ 47, subd. (b).) The privilege recognized in section 47 derives
from common law principles establishing a defense to the tort of defamation.
(Oren Royal Oaks Venture, supra, 42 Cal.3d at p. 1163.)
“Although originally enacted with reference to defamation [citation], the
privilege is now held applicable to any communication, whether or not it amounts
to a publication [citations], and all torts except malicious prosecution. [Citations.]
Further, it applies to any publication required or permitted by law in the course of
a judicial proceeding to achieve the objects of the litigation, even though the
publication is made outside the courtroom and no function of the court or its
officers is involved. [Citations.] [¶] 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 have some connection or logical relation to the
action. [Citations.]” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg).)
Thus, “communications with ‘some relation’ to judicial proceedings” are
“absolutely immune from tort liability” by the litigation privilege (Rubin v. Green
(1993) 4 Cal.4th 1187, 1193 (Rubin)). It is not limited to statements made during
a trial or other proceedings, but may extend to steps taken prior thereto, or
afterwards. (5 Witkin, Summary of Cal. Law, supra, Torts, §§ 470, 505, pp. 554,
591.)
Because the litigation privilege protects only publications and
communications, a “threshold issue in determining the applicability” of the
privilege is whether the defendant’s conduct was communicative or
noncommunicative. (Kimmel v. Goland (1990) 51 Cal.3d 202, 211 (Kimmel).)
8
The distinction between communicative and noncommunicative conduct hinges on
the gravamen of the action. (Rubin, supra, 4 Cal.4th at p. 1195; Pacific Gas &
Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1132, fn. 12.) That is,
the key in determining whether the privilege applies is whether the injury
allegedly resulted from an act that was communicative in its essential nature.
(Rubin, supra, 4 Cal.4th at p. 1196; Kimmel, supra, 51 Cal.3d at p. 211.) The
following acts have been deemed communicative and thus protected by the
litigation privilege: attorney prelitigation solicitations of potential clients and
subsequent filing of pleadings in the litigation (Rubin, supra, 4 Cal.4th at pp.
1195-1196); testimonial use of the contents of illegally overheard conversation
(Ribas v. Clark (1985) 38 Cal.3d 355, 364-365). The following acts have been
deemed noncommunicative and thus unprivileged: prelitigation illegal recording
of confidential telephone conversations (Kimmel, supra, 51 Cal.3d at pp. 205,
209); eavesdropping on a telephone conversation (Ribas v. Clark, supra, 38 Cal.3d
at pp. 364-365); physician’s negligent examination of patient causing physical
injury (Mero v. Sadoff (1995) 31 Cal.App.4th 1466, 1479-1480).
The “[p]leadings and process in a case are generally viewed as privileged
communications.” (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 770.) The
privilege has been applied specifically in the context of abuse of process claims
alleging the filing of false or perjurious testimony or declarations. (Pollock v.
University of Southern California (2003) 112 Cal.App.4th 1416, 1431 [declaration
“functions as written testimony,” is a “communication, not conduct,” and “is
exactly the sort of communication the privilege is designed to protect”]; Pettitt v.
Levy (1972) 28 Cal.App.3d 484, 489 [“[p]reparing and presenting false documents
is equivalent to the preparation and presentation of false testimony”]; Carden v.
Getzoff (1987) 190 Cal.App.3d 907, 913-915 [claim that expert witness had
manufactured false evidence for former wife in dissolution action was
9
privileged].) Thus, the Court of Appeal here correctly concluded that the
communicative act of filing an allegedly false declaration of service of process fell
within the litigation privilege. (See also, Steiner v. Eikerling (1986) 181
Cal.App.3d 639, 643 [presentation of a forged will in a judicial proceeding
constituted a “publication” under section 47]; Pettitt v. Levy, supra, 28 Cal.App.3d
at p. 491 [preparation and submission of false or forged building permit to city
council and planning commission pursuant to alleged conspiracy was privileged].)
However, the Court of Appeal further determined that the gravamen of the
action was not the submission of false evidence. Instead, it was a conspiracy to
enforce a judgment obtained through the use of perjured declarations of service
which “culminated in the noncommunicative conduct of enforcing the judgment.”
Recognizing that there is a conflict in the case law about whether the litigation
privilege applies to postjudgment collection activities, the Court of Appeal chose
to follow Drum, supra, 107 Cal.App.4th 1009. It noted that there, “the filing was
a document in support of a writ of execution; actual execution of the writ was not
a ‘communication’ . . . .” It concluded that, “[u]nder the reasoning of the court in
Drum . . . , the filing of a perjured proof of service may have been communicative
but executing on the resulting default judgment was not. The litigation privilege
therefore does not establish a complete defense to the abuse of process cause of
action.” (Fn. omitted.)
C. Whether the Litigation Privilege Applies to Postjudgment
Collection Activities—the Conflict in the Case Law.
Earlier cases have upheld actions for abuse of process involving allegedly
improper collection practices without addressing the applicability of the litigation
privilege. (See, e.g., Barquis, supra, 7 Cal.3d at pp. 103-104 [collection agency’s
alleged practice of filing actions in multiple improper venues]; Kappel v. Bartlett,
supra, 200 Cal.App.3d at pp. 1463-1467 [process server’s filing false declaration
10
of service of process to obtain default judgment]; Czap v. Credit Bureau of Santa
Clara Valley (1970) 7 Cal.App.3d 1, 5 [collection agency’s levy executed on
exempt wages and threatened subsequent levies]; Arc Investment Co. v. Tiffith
(1958) 164 Cal.App.2d Supp. 853, 856 [levy executed on judgment debtor’s
exempt wages].) However, later cases applying the litigation privilege have
narrowed the tort’s reach in the context of court-sanctioned enforcements of
judgments. (Brown, supra, 94 Cal.App.4th at pp. 46-50; O’Keefe v. Kompa
(2000) 84 Cal.App.4th 130, 134-136 (O’Keefe); Merlet v. Rizzo (1998) 64
Cal.App.4th 53, 64-66 (Merlet).)
In Merlet, supra, 64 Cal.App.4th 53, the plaintiff sued for abuse of process
after the defendants filed a motion for a writ of sale against a property owned by
the plaintiff and a motion for reconsideration after the trial court denied the
issuance of the writ. The Court of Appeal held that defendants’ acts were covered
by the litigation privilege because they were “clearly permitted by law in the
course of a judicial proceeding.” (Id. at pp. 65-66.)
In O’Keefe, supra, 84 Cal.App.4th 130, the plaintiff sued for abuse of
process after the defendants had attempted to enforce a judgment for attorney’s
fees while the action was on appeal and arguably stayed. One of the defendants
levied on a bank account while the other defendant filed an allegedly fraudulent
abstract of judgment with the recorder’s office. The Court of Appeal held that
those efforts to enforce the judgment were privileged because they were “an
extension of th[e] judicial process” and “were logically and legally related to the
realization of a litigation objective—that is, collection of a judgment.” (Id. at pp.
134-135.) The court reasoned that the fact the conduct occurred outside the
courtroom and after trial (rather than before or during trial, as in the vast majority
of litigation privilege cases) was immaterial. (Id. at p. 134.)
11
In Brown, supra, 94 Cal.App.4th 40, the plaintiff sued for abuse of process
against the defendant, a judgment creditor’s attorney in the underlying action. The
plaintiff alleged that the defendant had enforced an invalid judgment by applying
for and obtaining a writ of execution and levying on exempt funds. The Court of
Appeal noted that, generally, judgment enforcement efforts are considered to be
within the litigation privilege because they are an extension of a judicial
proceeding and related to a litigation objective. (Id. at pp. 49-50.) Nevertheless,
the plaintiff contended that his abuse of process claim arose from the wrongful
levy, which was neither a statement nor a communication within the litigation
privilege. (Ibid.) In rejecting the argument that the levy was not a communication
within the litigation privilege, the court stated: “The act of applying for a writ is
privileged. The privilege extends to torts arising from the privileged statement or
publication. As such, not only does the privilege protect the application for the
writ of execution, it also extends to the act of carrying out the directive of the
writ.” (Id. at p. 50, fns. omitted.)
In contrast, the Drum court later held that “wrongfully levying on property
pursuant to a writ of execution is not subject to the litigation privilege.” (Drum,
supra, 107 Cal.App.4th at p. 1028.) The plaintiff there sued for abuse of process
against the defendants, the judgment creditor’s attorneys in the underlying action.
The plaintiff alleged that the defendants wrongfully levied on a writ of execution
against him after the underlying judgment had been stayed. The trial court
dismissed the complaint for abuse of process after granting the defendants’ anti-
SLAPP motion, but the Court of Appeal reversed. (Id. at p. 1017.) Although the
Court of Appeal in Drum agreed with Merlet, it criticized O’Keefe and Brown for
failing to distinguish between conduct and publications. Drum agreed that, as in
those cases, the filings of motions for a writ of sale and reconsideration and an
abstract of judgment, and an application for a writ of execution were privileged.
12
But it disagreed that levying on exempt funds was also privileged because its
essential nature was action, not communication. (Id. at pp. 1027-1028 & fn. 12.)
“[I]t does not follow that, merely because the application for the writ—essentially
the statement by the judgment creditor to the clerk that the creditor has a judgment
and requests the issuance of a writ—is a privileged communication, subsequent
acts in levying on property are likewise privileged.” (Id. at pp 1027-1028.) “The
line is crossed when the levying officer, on behalf of the judgment creditor,
actually levies on the property. That is a taking: the act of removing property
from one source (here a financial institution) and depositing it in a place controlled
by the levying officer.” (Id. at p. 1026.)
D. The Litigation Privilege Protects the Communicative Act of Filing a
Declaration of Service, the Gravamen of the Abuse of Process
Claim in This Case.

Rusheen argues that the Courts of Appeal in Drum and in this case
correctly determined that the wrongful act of levying on property in execution of
judgment is a noncommunicative act in its “essential nature” and is thus
unprivileged. However, even if levying on property involves a noncommunicative
physical act, those courts failed to address the relevant question of whether the
gravamen of the action was communicative or noncommunicative conduct.3
Drum assumed without analysis that the gravamen of the judgment debtor’s
cause of action for abuse of process was based on the physical act of levying on

3
Drum defined a levy on property as “the act of removing property” from
one source and depositing it in another place controlled by the levying officer.
(Drum, supra, 107 Cal.App.4th at p. 1026.) However, as Cohen notes, even the
execution and levying process may also involve communications such as the
delivery of the writ and statements or representations made to the levying officer
or other party. (See, e.g., Profile Structures, Inc. v. Long Beach Bldg. Material
Co.
(1986) 181 Cal.App.3d 437, 442-443 [service of temporary protective order
on third parties was privileged].)
13


property, rather than on the communicative process of applying for the writ of
execution. But it is arguable that the gravamen of the action there was the
judgment creditor’s application for writ of execution in violation of the court-
ordered stay, and that the subsequent levy on property during the stay merely
resulted from the writ of execution. (Cf. Olszewski v. Scripps Health (2003) 30
Cal.4th 798, 831 [defendant’s filing of statutory liens resulting in allegedly
unlawful seizure of funds was communicative conduct protected by litigation
privilege]; Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 355, 357
(Hagberg) [citizen reports of suspected criminal activity to law enforcement
resulting in alleged false arrest and imprisonment of another was communicative
conduct protected by litigation privilege].)
Similarly, the Court of Appeal here concluded that “the filing of a perjured
proof of service may have been communicative but executing on the resulting
default judgment was not.” It further concluded that “the gravamen of the action
was a conspiracy to enforce a judgment obtained through the use of perjured
declarations of service,” which “culminated in the noncommunicative conduct of
enforcing the judgment.” It thus appears that the Court of Appeal identified two,
rather than a single, gravamen of the action: (1) the alleged conspiracy; and (2)
the actual enforcement by way of levy.
However, as Cohen points out, the Court of Appeal’s reliance on an alleged
conspiracy was misplaced. The second amended cross-complaint (the operative
pleading here) no longer contained a claim of conspiracy against Cohen. The
conspiracy cause of action had been previously dismissed without leave to amend
the first amended cross-complaint. Additionally, a civil conspiracy does not give
rise to a cause of action unless an independent civil wrong has been committed.
The elements of an action for civil conspiracy are (1) formation and operation of
the conspiracy and (2) damage resulting to plaintiff (3) from a wrongful act done
14
in furtherance of the common design. (Doctors’ Co. v. Superior Court (1989) 49
Cal.3d 39, 44.)
The Court of Appeal failed to identify any allegedly wrongful conduct by
Cohen other than simply filing perjured declarations of service. Although the
court stated that the conspiracy “culminated in the noncommunicative conduct of
enforcing the judgment,” enforcement of a judgment (in this case by way of levy)
is simply the object of any civil action for damages. (Brown, supra, 94
Cal.App.4th at p. 49 [enforcement proceedings are an extension of the judicial
process and related to a litigation objective].) Indeed, the court further stated
(somewhat inconsistently) that the “gravamen of the complaint here is that . . .
Cohen and his coconspirators obtained a judgment by default by using false proofs
of service” (italics added), conduct that is manifestly communicative.
On close analysis, the gravamen of the action was not the levying act, but
the procurement of the judgment based on the use of allegedly perjured
declarations of service. Because these declarations were communications “(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 have
some connection or logical relation to the action” (Silberg supra, 50 Cal.3d at p.
212), the litigation privilege applies to the declarations and protects against torts
arising from the privileged declarations. (Id. at p. 214.) Moreover, as Cohen
argues, since a party may not be liable for submitting false testimony or evidence
in the course of judicial proceedings, which are used to obtain a judgment, the
party should likewise be immune from abuse of process claims for subsequent acts
necessary to enforce it. Otherwise, application of the litigation privilege would be
thwarted. Thus, where the gravamen of the complaint is a privileged
communication (i.e., allegedly perjured declarations of service) the privilege
extends to necessarily related noncommunicative acts (i.e., act of levying).
15
Extending the litigation privilege to postjudgment enforcement activities
that are necessarily related to the allegedly wrongful communicative act is
consistent with public policy considerations. The purposes of section 47,
subdivision (b), are to afford 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 (Silberg, supra, 50 Cal.3d at pp. 213-214.) To effectuate these
purposes, the litigation privilege is absolute and applies regardless of malice. (Id.
at pp. 215-216.) Moreover, “[i]n furtherance of the public policy purposes it is
designed to serve, the privilege prescribed by section 47(2) has been given broad
application.” (Id. at p. 211.)
Conversely, expansion of the litigation privilege here necessarily narrows
the scope of the tort of abuse of process in the judgment enforcement context.
(See Silberg, supra, 50 Cal.3d at p. 213 [application of the litigation privilege
eliminates the threat of tort liability for communications made during judicial,
quasi-judicial, legislative and other official proceedings].) But, despite Drum’s
concern for the potential abolishment of the common law tort of abuse of process
(Drum, supra, 107 Cal.App.4th at p. 1028), modern public policy seeks to
encourage free access to the courts and finality of judgments by limiting derivative
tort claims arising out of litigation-related misconduct and by favoring sanctions
within the original lawsuit. (See Rubin, supra, 4 Cal.4th at pp. 1198-1199; Brown,
supra, 94 Cal.App.4th at p. 45; see also Temple Community Hospital v. Superior
Court (1999) 20 Cal.4th 464, 469-471, 478 [no cause of action for intentional third
party spoilation of evidence]; Cedars-Sinai Medical Center v. Superior Court
(1998) 18 Cal.4th 1, 8-13 (Cedars-Sinai Medical Center) [no cause of action for
intentional first party spoilation of evidence]; Sheldon Appel Co. v. Albert &
16
Oliker (1989) 47 Cal.3d 863, 872-874 [limitations on malicious prosecution
recovery]; Pollock v. University of Southern California, supra, 112 Cal.App.4th at
pp. 1430-1431 [no civil causes of action for perjury or abuse of process for filing
false declarations]; Kachig v. Boothe (1971) 22 Cal.App.3d 626, 640-641 [no
cause of action for intentional infliction of emotional distress].)
In an analogous context, we weighed the social benefits of creating a tort
cause of action for the intentional first party spoilation of evidence against the
costs and burdens it would impose. (Cedars-Sinai Medical Center, supra, 18
Cal.4th at p. 8.) We concluded that the benefits of creating a tort remedy for
intentional first party spoilation were outweighed by: (1) the policy against
creating derivative tort remedies for litigation-related misconduct; (2) the strength
of existing nontort remedies for spoilation within the underlying action itself
rather than through an expansion of the opportunities for initiating one or more
additional rounds of litigation after the first action has been concluded; and (3) the
uncertainty of the fact of harm in spoilation cases. (Id. at pp. 8-9, 11, 13, 15.)
Similarly, with the litigation privilege, “it is desirable to create an absolute
privilege . . . not because we desire to protect the shady practitioner, but because
we do not want the honest one to have to be concerned with [subsequent
derivative] actions . . . .” (Thornton v. Rhoden (1966) 245 Cal.App.2d 80, 99.)
“For our justice system to function, it is necessary that litigants assume
responsibility for the complete litigation of their cause during the proceedings. To
allow a litigant to attack the integrity of evidence after the proceedings have
concluded, except in the most narrowly circumscribed situations, such as extrinsic
fraud, would impermissibly burden, if not inundate, our justice system.” (Silberg,
supra, 50 Cal.3d at p. 214, citing Briscoe v. LaHue (1983) 460 U.S. 325, 333.)
Thus, the “salutary policy reasons for an absolute [litigation] privilege supersede
individual litigants’ interests in recovering damages for injurious publications
17
made during the course of judicial proceedings.” (Silberg, supra, 50 Cal.3d at p.
218.)
Here, Rusheen’s abuse of process claim poses a threat to the goal of finality
of judgments. In denying Rusheen’s motion to vacate the default judgment, the
trial court found that Rusheen had been personally served with the documents and
thus, that the declarations of service of process were not perjured. On the appeal
of the default judgment, the Court of Appeal did not overturn that factual finding.
Rusheen’s abuse of process claim—a derivative tort for litigation-related
misconduct—would be another round of litigation to decide the same issue that
had already been decided.
Moreover, the denial of an abuse of process claim is mitigated by the fact
that Rusheen had adequate alternative remedies. Indeed, Rusheen exercised one
of those remedies by successfully moving to set aside the default judgment. On
remand, Rusheen will have an opportunity to defend against Han’s claims. There
were additional nontort remedies for the allegedly wrongful conduct: moving to
recall and quash the writ of execution (see Brown, supra, 94 Cal.App.4th at p. 50;
Stegge v. Wilkerson (1961) 189 Cal.App.2d 1, 5; Colby v. Colby (1954) 127
Cal.App.2d 602, 605; Meyer v. Meyer (1952) 115 Cal.App.2d 48, 49); posting an
undertaking or seeking a writ of supersedeas to thwart enforcement efforts
(O’Keefe, supra, 84 Cal.App.4th at pp. 135-136); or filing a claim of exemption
from execution (C.L. Vineyard v. Sisson (1990) 223 Cal.App.3d 931, 938).
Nevada has similar remedies against improper execution. (See Maki v. Chong
(Nev. 2003) 75 P.3d 376 [claims of exemption]; Daniel v. Barengo (Nev. 1978)
585 P.2d 1348 [motion to quash writ of execution].) Also, the litigation privilege
does not bar criminal prosecutions for perjury. (Hagberg, supra, 32 Cal.4th at p.
361.)
18
Finally, we note that the process itself of enforcing money judgments is
subject to judicial supervision. After entry of judgment and on application of the
judgment creditor, the court clerk issues a writ of execution directed to the levying
officer and to any registered process server. (Code Civ. Proc., § 699.510, subd.
(a).) The levying officer must serve a copy of the writ of execution and notice of
levy on the judgment debtor and return the writ to the court with a report of the
officer’s actions and an accounting of amounts collected and costs incurred.
(Code Civ. Proc., §§ 700.010, 699.560, subd. (a).)
Given the alternative remedies for improper service and the procedural
protections against improper enforcement, we agree with those cases that have
applied the litigation privilege to limit the availability of the tort of abuse of
process in the judgment enforcement context. (Brown, supra, 94 Cal.App.4th at
pp. 49-51; O’Keefe, supra, 84 Cal.App.4th at pp. 135-136.) We disapprove Drum
to the extent it is inconsistent with this opinion. (Drum, supra, 107 Cal.App.4th
1009.)
Accordingly, we conclude that if the gravamen of the action is
communicative, the litigation privilege extends to noncommunicative acts that are
necessarily related to the communicative conduct, which in this case included acts
necessary to enforce the judgment and carry out the directive of the writ. (See
Rubin, supra, 4 Cal.4th at p. 1195 [fact that defendants’ communications
“necessarily involved related acts” does not destroy privilege]; Brown, supra, 94
Cal.App.4th at p. 50; O’Keefe, supra, 84 Cal.App.4th at p. 134.) Stated another
way, unless it is demonstrated that an independent, noncommunicative, wrongful
act was the gravamen of the action, the litigation privilege applies.
Here, because the execution of the judgment did not provide an
independent basis for liability separate and apart from the filing of the false
declarations of service, the gravamen of the action was the procurement of the
19
judgment, not its enforcement. Thus, the enforcement of the judgment in reliance
on the filing of privileged declarations of service was itself privileged. Because
the trial court correctly found that there was no reasonable probability Rusheen’s
abuse of process claim would prevail on the ground Cohen’s allegedly wrongful
conduct was privileged (Civ. Code § 47, subd. (b)), it properly granted the anti-
SLAPP motion (Code Civ. Proc., § 425.16), struck the cross-complaint against
Cohen, and entered judgment in his favor.
III. DISPOSITION
We reverse the judgment of the Court of Appeal and remand the case to
that court for further proceedings consistent with this opinion.
CHIN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
FLIER, J. *

_____________________________________

* Associate Justice of the Court of Appeal, Second Appellate District, Division
Eight, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
20
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Rusheen v. Cohen
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. filed 1/26/04 – 2d Dist., Div. 4
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S123203
Date Filed: February 23, 2006
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Charles W. Stoll

__________________________________________________________________________________

Attorneys for Appellant:

Law Office of Robert F. Henry and Robert F. Henry for Cross-complainant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Lewis Brisbois Bisgaard & Smith, John R. Feliton, Jr., Elizabeth G. O’Donnell and Raul L. Martinez for
Cross-defendants and Respondents.

Murphy, Pearson, Bradley & Feeney and Mark E. Ellis for California Association of Collectors, National
Association of Retail Collection Attorneys and California Creditors Bar Association as Amici Curiae on
behalf of Cross-defendants and Respondents.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert F. Henry
Law Office of Robert F. Henry
11949 Jefferson Boulevard, Suite 107
Culver City, CA 90230
(310) 289-5499

Raul L. Martinez
Lewis Brisbois Bisgaard & Smith
221 N. Figueroa Street, Suite 1200
Los Angeles, CA 90012-2601
(213) 250-1800

Mark E. Ellis
Murphy, Pearson, Bradley & Feeney
701 University Avenue, Suite 150
Sacramento, CA 94825
(916) 565-0300


Opinion Information
Date:Docket Number:
Thu, 02/23/2006S123203

Parties
1Cohen, Barry E. (Cross-defendant and Respondent)
Represented by Raul L. Martinez
Lewis D'Amato et al.
221 N. Figueroa Street, Suite 1200
Los Angeles, CA

2Cohen & Cohen (Cross-defendant and Respondent)
Represented by Raul L. Martinez
Lewis D'Amato et al
221 N Figueroa St #1200
Los Angeles, CA

3Rusheen, Terry (Cross-complainant and Appellant)
Represented by Robert F. Henry
Law Office of Robert F. Henry
11949 Jefferson Boulevard, Suite 107
Culver City, CA

4California Association Of Collectors (Amicus curiae)
Represented by Mark E. Ellis
Murphy Pearson et al
701 University #150
Sacramento, CA

5National Association Of Retail Collection Attorneys (Amicus curiae)
Represented by Mark E. Ellis
Murphy Pearson et al
701 University #150
Sacramento, CA

6California Collection Bar Association (Amicus curiae)
Represented by Mark E. Ellis
Murphy Pearson et al
701 University #150
Sacramento, CA


Disposition
Feb 23 2006Opinion: Reversed

Dockets
Mar 5 2004Petition for review filed
  respondents Barry E. Cohen, etal
Mar 10 2004Received Court of Appeal record
  1 doghouse
Apr 22 2004Time extended to grant or deny review
  to and including June 3, 2004
May 12 2004Petition for review granted; issues limited (civil case)
  The issues to be briefed and argued are limited to the following: (1) Are actions taken to collect a judgment, such as obtaining a writ of execution and levying on the judgment debtor's property, protected by the litigation privilege of Civil Code section 47, subdivision (b), as "communications" in the course of a judicial proceeding? (2) Is a claim for abuse of process based on the filing of an allegedly false declaration of service barred by the litigation privilege on the ground the claim is necessarily founded on a communicative act?" Votes: Geroge, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
May 27 2004Certification of interested entities or persons filed
  by Raul L.Martinez, Lewis D'Amato et al. (Respondents)
Jun 3 2004Request for extension of time filed
  to file brief on the merits. (respondent/Barry E. Cohen et al.)
Jun 8 2004Extension of time granted
  On application of Respondents and good cause appearing, it is ordered that the time to serve and file Respondents' Opening Brief on the Merits is extended to and including August 10, 2004.
Jun 10 2004Certification of interested entities or persons filed
  by Robert F. Henry, counsel for appellant (Rusheen)
Aug 10 2004Request for extension of time filed
  by respondents for an e.o.t. of 15 days to and including 8-25-2004.
Sep 2 2004Opening brief on the merits filed
  by respondents (Barry E. Cohen, Barry E. Cohen, APC, et al.) CRC 40k/FedEx
Sep 2 2004Extension of time granted
  On application of respondents and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including August 25, 2004. This order is filed as of August 16, 2004, nunc pro tunc, due to clerical error.
Sep 21 2004Request for extension of time filed
  Request by appellant Terry Sheen to extend time file answer brief on the merits: asking to November 16, 2004.
Sep 24 2004Extension of time granted
  To November 16, 2004 to file appellant's answer brief on the merits.
Nov 9 2004Request for extension of time filed
  to file answer breif/merits appellant's asking -> 12-06-04.
Nov 10 2004Extension of time granted
  to Dec. 6, 2004 for appellant to file the answer brief on the merits.
Dec 6 2004Answer brief on the merits filed
  appellant Terry Rusheen
Dec 23 2004Request for extension of time filed
  for resps to file the reply brief on the merits, to 1-26-05.
Jan 5 2005Extension of time granted
  to 1-26-05 for resps to file the reply brief on the merits.
Jan 27 2005Request for extension of time filed
  to February 2, 2005 (7 days) to file the Reply Brief on the Merits
Feb 2 2005Extension of time granted
  respondents to and including February 7, 2005, to file the reply brief on the merits.
Feb 3 2005Reply brief filed (case fully briefed)
 
Mar 4 2005Received application to file Amicus Curiae Brief
  (in Sacramento) by California Association of Collectors, National Association of Retail Collection Attorneys and the California Collection Bar Association in support of respondents Amicus Curiae Brief submitted separately.
Mar 16 2005Permission to file amicus curiae brief granted
  California Association of Collectors, National Association of Retail Collection Attorneys and California Collection Bar Association in support of respondents (Barry E. Cohen et al.). An answer thereto may be served and filed by any party within twenty days of the fiilng of the brief.
Mar 16 2005Amicus curiae brief filed
  California Association of Collectors, National Association of Retail Collection Attorneys and California Collection Bar Association in support of respondents (Barry E. cohen et al.).
Mar 18 2005Received:
  From Murphy Pearson et al, errata to correct the name of one of the amici curiae organizations mistyped on the cover of the amici curiae brief as: California Collection Bar Association. Correct Name: " California Creditors Bar Association"
Nov 9 2005Case ordered on calendar
  December 7, 2005, 9:00 a.m., in Los Angeles
Nov 16 2005Request for Extended Media coverage Filed
  By John Hancock of the California Channel.
Nov 18 2005Filed:
  Request for permission to share oral argument time with counsel for amici curiae, filed by counsel for respondents Cohen et al. (asking 10 minutes for amicus counsel).
Nov 18 2005Request for Extended Media coverage Granted
  subject to the conditions set forth in rule 980, California Rules of Court.
Nov 21 2005Filed:
  Letter from Robert F. Henry, counsel for Terry Rusheen, stipulating to Justice Kennard's participation in the case, per court's letter dated November 14, 2005.
Nov 21 2005Filed:
  Stipulation re Justice Kennard's participation in argument, filed by Raul L. Martinez, counsel for respondents.
Nov 21 2005Argument rescheduled
  to 2:00 p.m. on Tuesday, December 6, 2005.
Nov 22 2005Order filed
  The request of respondents to allocate to amicus curiae California Association of Collectors et al. 10 minutes of respondents' 30-minute allotted time for oral argument is granted.
Nov 28 2005Order filed
  The order filed Nov. 18, 2005, granting media coverage is hereby vacated.
Nov 28 2005Order filed
  The request of respondents to allocate to amicus curiae California Association of Collectors et al., 10 minutes of respondents' 30-minutes allotted time for oral argument is granted.
Dec 6 2005Cause argued and submitted
 
Feb 23 2006Opinion filed: Judgment reversed
  and remanded to that court. Opinion by Chin, J. -- Joined by George, C. J., Kennard, Baxter, Werdegar, Moreno, JJS, and Flier, J.* Hon. Madeleine I. Flier, Associate Justice, Second Appellate District, Division Eight. [ Court of Appeal Judgment ]
Mar 28 2006Remittitur issued (civil case)
 
Apr 7 2006Received:
  Receipt for remittitur from Second Appellate District, Division Four, signed for by S. Veverka, Deputy.
Apr 19 2006Returned record
  To 2 DCA Div. 2. (2 volumes)

Briefs
Sep 2 2004Opening brief on the merits filed
 
Dec 6 2004Answer brief on the merits filed
 
Feb 3 2005Reply brief filed (case fully briefed)
 
Mar 16 2005Amicus curiae brief filed
 
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