Unreported / Non-Citable
Background
This second appeal concerns Regal Medical Group's anti-SLAPP motion to strike portions of Advanced Orthopedic Center's (AOC) second amended complaint alleging Regal bribed Patient 5 for favorable testimony. AOC, owned by Dr. Nissanoff, treated Patient 5, a Regal member, and billed $1,716 in October 2019. Regal paid only $150.33. After AOC prevailed in small claims, Regal sought trial de novo and submitted a Patient 5 declaration stating his condition was not an emergency, disclosing it had reimbursed Patient 5 the $500 fee Nissanoff had charged.
AOC amended its complaint to add UCL and declaratory relief claims alleging the $500 payment constituted bribery under Penal Code § 137 and 18 U.S.C. § 201(c)(2). Regal moved to strike 13 paragraphs. In the first appeal (Advanced I), the Court of Appeal held nine paragraphs described protected activity because they alleged Regal "persuaded" Patient 5 to testify, and remanded for the trial court to consider the second prong—whether AOC showed minimal merit.
On remand, the trial court (Judge Joseph Lipner) granted the motion to strike, finding the litigation privilege (Civ. Code, § 47(b)) barred AOC's criminal law claims. It later awarded Regal $155,225.98 in attorney fees and costs under § 425.16(c)(1), reducing the requested $210,627.48 by approximately 113 hours. AOC appealed both orders.
The Court’s Holding
The Court of Appeal affirmed, holding the trial court correctly granted the anti-SLAPP motion. The gravamen of the bribery and anti-gratuity statutes is the effort to obtain, influence, or suppress testimony—communicative conduct. Penal Code § 137 requires an "understanding or agreement" that testimony will be influenced, meaning Regal had to communicate that money was offered for testimony. Similarly, 18 U.S.C. § 201(c)(2) requires payment "for or because of" testimony, itself a communication. The court rejected AOC's argument that the gravamen was simply the payment of money, noting the complaint focused on Regal's procurement of testimony.
The court also rejected AOC's contention that the privilege did not apply because the conduct did not occur "in court." The privilege extends to preliminary conversations between a prospective witness and an attorney if related to pending or contemplated litigation. Regal's attorney's discussions with Patient 5 about the declaration, and the declaration itself, satisfied the first element. The privilege is absolute, applies regardless of malice, and extends even to perjury claims.
Regarding fees, the court held the trial court did not abuse its discretion. Mann does not require apportionment based on how many claims remain; the trial court properly considered that the motion eliminated the only criminally based claims, affecting Regal's business reputation, and narrowed discovery and trial issues. AOC forfeited its block-billing argument by failing to raise it below, and the approximately 150 pages of invoices sufficiently detailed the tasks and time.
Key Takeaways
- The litigation privilege under Civil Code section 47(b) bars bribery claims when the gravamen is communicative conduct related to obtaining testimony, even if money changed hands.
- Penal Code section 137 and 18 U.S.C. section 201(c)(2) both require communicative conduct as an element, making such claims subject to the privilege when based on witness communications.
- The privilege extends to attorney-witness interviews related to pending litigation, not just in-court statements, and applies absolutely regardless of malice.
- Prevailing anti-SLAPP defendants are entitled to mandatory fees under section 425.16(c); courts need not apportion based on remaining claims if the motion achieved practical benefit.
- Arguments not raised in the trial court, such as block-billing objections, are forfeited on appeal.
Why It Matters
This decision reinforces the broad scope of California's litigation privilege and its application to claims alleging improper witness payments. By holding that bribery and anti-gratuity statutes inherently involve communicative conduct, the court makes clear that such claims cannot circumvent the privilege by characterizing the injury as arising from the payment itself rather than the procurement of testimony. The ruling protects litigants and attorneys from derivative actions based on efforts to obtain witness testimony, even when those efforts involve financial reimbursements.
The decision also provides guidance on anti-SLAPP attorney fee awards, confirming that prevailing defendants need not achieve complete victory to recover fees and that trial courts have discretion to determine reasonable amounts without itemized findings for every billing entry. The emphasis on the practical benefit of eliminating criminal allegations may encourage defendants to pursue anti-SLAPP motions even in cases involving relatively small monetary amounts.