 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Cassidy v. Gaiser5/3/2005
nspiracy to wrongfully evict plaintiffs from the West El Campo property. Three wrongful evictions are set forth: two by Timothy on January 25, 2000, and February 23, 2000; and one self-help eviction by James beginning on August 12, 2000. The complaint alleged Sharon aided this conspiracy by updating her April 2000 disclaimer and having it notarized so it could be recorded, and by failing to send plaintiffs the termination notice required by Civil Code section 789. The complaint alleged Sharon was a coconspirator in the wrongful acts by James and Timothy. The complaint does not allege that Sharon's acts were wrongful, only that her actions--updating and notarizing the disclaimer so it could be recorded--aided the wrongful acts of her brothers. The complaint alleged, "without her [Sharon's] bogus disclaimer, the false deed couldn't have been created and James never would have had the nerve to break in and evict the plaintiffs."
In order to succeed on her summary judgment motion, Sharon had to show either that one or more elements of the conspiracy could not be established or that she had a complete defense to the conspiracy charge. (Code Civ. Proc., ยง 437c, subd. (p)(2).) The trial court granted summary judgment on the basis that Sharon had a complete defense. The court found that Sharon was entitled to immunity because the litigation privilege attached to the disclaimer. Where the only action taken by a defendant as part of the alleged conspiracy is privileged, the defendant has no liability. (Citizens Capital Corp. v. Spohn (1982) 133 Cal.App.3d 887, 889.)
The privilege of section 47(b) provides in part that a privileged communication is one made in a judicial proceeding. "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.)
Plaintiffs contend the trial court erred in finding the litigation privilege applied to Sharon. First, they contend the second prong of the litigation privilege formulation is not satisfied because Sharon was not a participant in the detainer action, the legal proceeding in which the disclaimer was filed. They assert there is no evidence that Sharon was a participant: she was not a litigant; she was not a witness; and she never made an appearance.
In arguing that Sharon was not a participant in the legal proceeding, plaintiffs ignore their own pleadings. A defendant moving for summary judgment may rely on the complaint's factual allegations which are judicial admissions. (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 222, fn. 3.) The first amended complaint alleges that Sharon was a coconspirator in the abuse of process by Timothy, James, Muratore, and Michael & Cammack. The abuse of process allegation was based on detainer action. If Sharon was a co-conspirator in abusing the legal process in this proceeding, she was a participant in the proceeding, even if she was not a named litigant. Further, the complaint alleges that the disclaimer that Sharon updated and had notarized was filed in the detainer action on July 3, 2000. Using her disclaimer as evidence was akin to making Sharon a witness in the detainer action. The litigation privilege applies to witnesses and prospective witnesses. (Silberg v. Anderson, supra, 50 Cal.3d 205, 213.)
Plaintiffs next contend that granting Sharon immunity under the litigation privilege is contrary to this court's decision in Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296 (Wise). In W
Page 1 2 3 4 5 6 7 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|