Holland v. Jones

Opinion

ROTHSCHILD, Acting P. J. Michael Jerome Holland filed a complaint for libel against his ex-wife Kelly Ann Jones as a limited jurisdiction matter, alleging that she maliciously made false statements about him in a declaration she had filed in their marital dissolution proceeding. The trial court granted Jones’s special motion to strike the complaint under Code of Civil Procedure section 425.16, the anti-SLAPP statute, on the ground that it was based on statements protected by the litigation privilege in Civil Code section 47, subdivision (b). Holland moved for reconsideration, and Jones moved for attorney fees as the prevailing defendant on an anti-SLAPP motion. The court denied reconsideration, vacated its order granting the special motion to strike, sua sponte elected to treat the special motion to strike as a demurrer, sustained the demurrer without leave to amend and directed that the motion for attorney fees under the anti-SLAPP statute was moot.

Holland appealed to the appellate division of the superior court, which apparently construed the appeal from the order sustaining a demurrer without leave to amend as an appeal from an order of dismissal. The appellate division then reversed the order of dismissal, concluding that the exception to the litigation privilege in Civil Code section 47, subdivision (b)(1), for an allegation in an affidavit filed in a marital dissolution proceeding potentially applied because Holland alleged that Jones had made the statements about him with malice. According to the appellate division, although Holland’s claim of malice “may be conclusory, he has raised the issue of whether the allegations in the declaration were made with malice, so as to be exempt from the privilege pursuant to Civil Code section 47, subdivision (b)(1),” and thus [381]should be afforded “a reasonable opportunity to adequately plead facts supporting his [claim] of malice.” After the appellate division denied Jones’s petition to certify the cause to the appellate court, she petitioned this court to transfer the cause. We granted the petition, issuing an order transferring the cause to the appellate court pursuant to California Rules of Court, rules 8.1002 and 8.1008. After briefing by the parties, we now reverse the decision of the appellate division. The exception to the litigation privilege on which the appellate division relied may apply only to statements made in a marital dissolution proceeding by or against a third party, not under the circumstances of this case when the statements are made against a party to the action.