Unreported / Non-Citable
Background
Lynley Kerr Hogan obtained a one-year civil harassment restraining order against Erica Zamora on March 14, 2023, and sought renewal in 2024. Nicole Marie Ford, an attorney, represented Zamora in the renewal proceeding. At the June 21, 2024 hearing, the court granted Hogan a two-year extension of the restraining order. Hogan later filed a self-represented complaint on May 27, 2025, alleging four causes of action against Ford: abuse of process, violation of the Unruh Civil Rights Act, violation of the Ralph Civil Rights Act, and intentional infliction of emotional distress. Her allegations were that Ford misrepresented the propriety of service of process, refused to accept service for Zamora, withheld Zamora's address, and thereby caused hearing continuances, delay, emotional distress, and continued risk from Zamora.
Ford filed a special motion to strike in July 2025 under Code of Civil Procedure section 425.16, arguing that every claim arose from her constitutionally protected petitioning activity as an attorney in judicial proceedings and was barred by the litigation privilege in Civil Code section 47(b). After a hearing on August 12, 2025, the trial court granted the motion and struck the complaint in its entirety, finding protected activity and no probability that Hogan would prevail. The court denied Ford's request for attorney fees because Ford represented herself and had not retained counsel or incurred fees for the motion. Hogan appealed, also challenging the denial of her peremptory challenge to the judge who heard the motion, the denial of her request for judicial notice, and the denial of sanctions.
The Court’s Holding
The Sixth District affirmed under de novo review. At the first anti-SLAPP step, the court held that Ford met her burden because Hogan's four claims rested on Ford's conduct as defense counsel in the Zamora action, especially her challenges to service of Hogan's papers. Those communicative acts fell within section 425.16, subdivisions (e)(1) and (e)(2), covering statements made before a judicial proceeding and statements made in connection with an issue under judicial review. The court stressed that communicative acts by attorneys representing clients in judicial proceedings are per se protected petitioning activity, and that the alleged falsity of litigation-related communications does not matter at the first step.
At the second step, the court held that Hogan failed to show a probability of prevailing because the litigation privilege in Civil Code section 47(b) applied as an absolute bar. The gravamen of the complaint was Ford's communicative conduct in the prior proceeding, and the alleged injury flowed from that conduct. The court rejected Hogan's unsupported argument that refusing service was noncommunicative procedural abuse, deemed her conclusory sanctions argument abandoned, denied her judicial-notice request, and declined to revisit the peremptory-challenge ruling because review of a section 170.6 denial is by writ petition, which this court had already denied on July 16, 2025. The August 12, 2025 order striking the complaint was affirmed, and Ford recovered costs on appeal.
Key Takeaways
- Statements made by attorneys in court and in connection with pending litigation are constitutionally protected activity under California's anti-SLAPP statute, regardless of allegations that the statements were false or improperly motivated.
- The litigation privilege under Civil Code section 47(b) absolutely bars tort claims whose gravamen is communicative conduct in a judicial proceeding, including challenges to service of process.
- A plaintiff opposing an anti-SLAPP motion must show that an asserted affirmative defense is inapplicable as a matter of law or produce facts that would negate it; conclusory contrary argument is insufficient.
- Peremptory-challenge denials under Code of Civil Procedure section 170.6 are reviewable only by writ petition, not by direct appeal from the later merits order.
- Unpublished California appellate opinions remain subject to California Rules of Court, rule 8.1115, and may not be cited or relied on except as permitted by that rule.
Why It Matters
The decision applies California's anti-SLAPP framework to a suit against opposing counsel and confirms that attorneys' in-court and litigation-related communications are protected at the first step even when the plaintiff alleges malice, falsity, or discriminatory motive. It also shows the litigation privilege operating as an absolute defense at the second step, defeating all four pleaded theories at once.
Practically, the ruling reinforces early dismissal of retaliatory suits against lawyers for advocacy in prior proceedings and confirms that self-representation can defeat a prevailing anti-SLAPP defendant's fee request because no attorney fees were incurred.