Cabral v. Martins

In Cabral v. Martins (2009) 177 Cal.App.4th 471, a woman filed suit against her ex-husband, his siblings, and several attorneys, in connection with a purported scheme to avoid child support payments. (Id. at pp. 475-477.) The various attorneys, respectively, had prepared a revised will for the ex-husband's mother that diverted what would have been his share of the estate to his sister, probated the mother's revised will, and represented the ex-husband and his siblings in certain fraudulent transfer actions. (Id. at pp. 476-477.) The attorneys, in the underlying child support evasion litigation, filed special motions to strike the complaint against them and the trial court granted the motions. (Id. at p. 477.) The appellate court affirmed. (Id. at p. 475.) In Cabral v. Martins (2009) a former wife's action against her former husband's attorney was held to have been properly dismissed under section 425.16 because the attorney's activities in helping the husband evade a child support judgment "were neither inherently criminal nor otherwise outside the scope of normal, routine legal services. Even if the attorney respondents' actions had the effect of defeating or forestalling the ex-wife's ability to execute her judgment for child support, thereby (according to her) violating the child support evasion statute, this is not the kind of illegality involved in Flatley v. Mauro (2006). . . ." (Cabral, supra, 177 Cal.App.4th at p. 481.) With respect to the first prong of the Code of Civil Procedure section 425.16 test, the Cabral court quickly concluded that the attorneys' acts of lodging the will and pursuing probate proceedings, and defending the siblings in the various litigation matters, constituted protected petitioning activity under section 425.16, subdivision (e)(1) and (2). (Cabral, supra, 177 Cal.App.4th at pp. 479-480.) The ex-wife argued to the contrary, contending that the actions of the attorneys were illegal, because they violated certain child support evasion statutes. (Id. at p. 480.) The Cabral court acknowledged the Flatley v. Mauro (2006) exclusion to the first prong of the Code of Civil Procedure section 425.16 test. (Cabral, supra, 177 Cal.App.4th at p. 480.) However, it emphasized the narrowness of the exclusion. The Cabral court observed that the Supreme Court in Flatley, supra, 39 Cal.4th 299 "concluded that 'communications which constituted criminal extortion as a matter of law and, as such, were unprotected by constitutional guarantees of free speech or petition,' were not protected by the anti-SLAPP statute. The Supreme Court made clear, however, that its holding was limited to 'the specific and extreme circumstances of this case,' in which the assertedly protected communications, as a matter of law, fell outside the ambit of protected speech. " (Cabral, supra, 177 Cal.App.4th at p. 480.) In short, the plaintiff sued "several attorneys who had represented her ex-husband, his siblings, and/or their mother." (Id. at p. 475.) The trial court granted the attorneys' special motion to strike. On appeal, as here, the plaintiff did not contest that the acts of which she complained were undertaken in connection with a judicial proceeding. Her sole contention was that their activity was not protected because it violated the child support evasion statutes. The appellate panel concluded that "even if the attorneys' actions had the effect of defeating or forestalling the plaintiff's ability to execute her judgment for child support, thereby according to the plaintiff violating the child support evasion statutes, this is not the kind of illegality involved in Flatley v. Mauro (2006) 39 Cal.4th 299 . . . ." (Cabral, supra, at p. 481.)