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Cassidy v. Gaiser5/3/2005
including Sharon's disclaimer, were privileged under Civil Code section 47, subdivision (b) (section 47(b)).
The trial court continued the hearing on Sharon's summary judgment motion. In light of the appellate ruling that Sharon's disclaimer was prepared for use in a judicial proceeding, the trial court requested briefing on the issue of immunity under section 47(b).
After considering both parties' briefs and oral arguments, the trial court granted Sharon's motion for summary judgment, finding she was entitled to immunity under section 47(b). The court found the civil conspiracy cause of action against Sharon was based on her execution and amendment of the disclaimer. The disclaimer was prepared by and signed at the request of the trust attorneys. Sharon was a direct beneficiary of the trust. Ownership of the trust's West El Campo property was at issue in the legal proceeding and Sharon was sufficiently connected to that proceeding to be a participant for purposes of the litigation privilege. Judgment was entered in Sharon's favor.
DISCUSSION
I.
Plaintiffs contend the trial court erred in granting summary judgment to Sharon. They first contend the court was without jurisdiction to consider the issue of the litigation privilege because Sharon did not raise it either in her answer or in her motion for summary judgment.
While the general rule is that the defense of privilege must be pled as an affirmative defense, a party may raise it in a motion for summary judgment provided the opposing party has adequate notice and opportunity to be heard. (Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 367.) Here, Sharon raised the issue of privilege only indirectly in her reply papers and it was the trial court that raised it directly in its request for briefing. We find no error. First, plaintiffs have failed to show prejudice; they do not contend that they were denied notice and an opportunity to be heard on the issue. Second, the trial court only accelerated consideration of the issue; after the decisions in the Konig appeal and the Muratore appeal, Sharon could have filed a second motion for summary judgment raising the issue of privilege.
"The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant meets her burden of showing a cause of action has no merit by showing either (1) that one or more elements of the cause of action cannot be established, or (2) that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)
Sharon was named as a defendant in the sixth cause of action for civil conspiracy. "To state a cause of action for conspiracy the complaint must allege: (1) the formation and operation of the conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the damage resulting. [Citations.]" (Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, 631.) A civil conspiracy is not a separate tort; it "provides a remedial measure for affixing liability to all persons who have `agreed to a common design to commit a wrong.' [Citation.]" (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 333.) Pleading a civil conspiracy is a procedural method of joining defendants and the only significance of the allegation "is that it renders each participant responsible as a contributory tortfeasor whether or not he actually committed the wrongful act. [Citation.]" (Barney v. Aetna Casualty & Surety Co. (1986) 185 Cal.App.3d 966, 983.)
The amended complaint alleged a co
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