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Court of Appeal:
Litigation Privilege Does Not Shield Attorney’s Baseless Threats Against Opposing Party
Opinion Says Protection Does Not Apply to Spousal Abuse Victim’s Suit Against Abuser’s Attorney Who Aggressively Threatened Legal Action
By Kimber Cooley, associate editor
Div. One of the Fourth District Court of Appeal held yesterday that the litigation privilege does not apply to an attorney’s communications with a victim of her criminal client’s domestic abuse where the lawyer aggressively demanded that the woman sign a shared child custody agreement or face legal action and there was no good faith intention to bring a suit at the time the threats were made.
At issue is Civil Code §47(b) which provides that “[a] privileged publication or broadcast is one made…[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law.”
San Diego-based attorney Karolyn Kovtun insisted on a meeting in her office in September 2017, knowing that a criminal protective order required her client, Mark Shenefield, to have no contact with his then-wife, Jennifer Shenefield. Kovtun represented Mark Shenefield in the criminal case and signed paperwork acknowledging awareness of the restraining order after her client pled guilty to a spousal battery.
A domestic violence restraining order was also in place as of June 2017, awarding Jennifer Shenefield full custody of the couple’s daughter and giving her permission to record any communications by Mark Shenefield that violated the decree.
About two weeks after pleading guilty, Mark Shenefield called his wife from Kovtun’s office. Kovtun told the unrepresented party that unless she came to the meeting, the lawyer would file for full custody.
Jennifer Shenefield came to the meeting prepared with a recording device. Mark Shenefield and Kovtun hurled abuse at her, with Kovtun accusing the mother of being a bad parent and saying that she would have hit the victim had she been in her client’s place.
When the wife attempted to leave, Kovtun again threatened to file for full custody. The mother signed the agreement, including the initials “U.D.” after her name to indicate that she signed it under duress.
As soon as she left the office, Jennifer Shenefield called the police and handed over the recording. Mark Shenefield was charged with violating the restraining order.
Civil Action
On July 13, 2018, while the criminal matter against her client was still pending, Kovtun filed a small claims complaint in the San Diego District Court against Jennifer Shenefield, seeking $5,000 in damages for invasion of privacy based on the recording of the meeting. In October of that year, Jennifer Shenefield filed a cross-complaint against Kovtun alleging negligence, intentional infliction of emotional distress, and other causes of action.
The cases were consolidated in the trial court.
After filing two unsuccessful anti-SLAPP motions and a largely unavailing demurrer to the operative complaint, Kovtun was found liable following a two-day bench trial before San Diego Superior Court Judge Eddie C. Sturgeon. On May 23, 2023, judgment was entered against the attorney and she was ordered to pay $50,000 in compensatory damages to Jennifer Shenefield.
In a story by NBC 7 San Diego, following the judgment, Jennifer Shenefield is quoted as saying:
“No one was going to believe me and I said they did this to me. The first thing they say is there’s no evidence of that, it’s he said, she said. We’re not going to believe you. This is an attorney, the attorney said that it didn’t happen so it didn’t happen. So many domestic violence victims deal with that. So I knew I had to do the recording.”
Court of Appeal
Justice Joan K. Irion authored the unpublished opinion affirming the judgment, saying:
“We are mindful of the overarching public policy underpinning the need for an absolute litigation privilege, which ‘promotes the effectiveness of judicial proceedings by encouraging attorneys to zealously protect their clients’ interests….’….While attorneys are expected to engage in vigorous advocacy to their clients’ litigation objectives, without a good faith intention to bring a suit, their prelitigation communications are not protected by the litigation privilege.”
Presiding Justice Judith McConnell and Justice Jose S. Castillo joined in the opinion.
Kovtun points to the absence of any reference to the “litigation privilege” in the statement of decision accompanying the judgment against her and claims that Sturgeon “simply ignored” or “failed to consider the application of [her litigation privilege] defense.” She contends that reversal is warranted as a matter of law “based on the record…presented.”
Disagreeing with her characterization of the record, Irion said that “our review of the record reveals the superior court did, indeed, consider Kovtun’s assertion of the litigation privilege and repeatedly ruled it did not apply to Kovtun’s communications,” noting that it was raised in Kovtun’s first anti-SLAPP motion and as a basis for the demurrer to the operative complaint.
The justice pointed out that “[a]side from its prior rulings, the superior court issued a detailed statement of decision that sufficiently disclosed its factual findings and ultimate conclusion that the litigation privilege did not apply,” noting that Kovtun was an active participant in the abuse and threatened baseless legal action.
Good Faith Intention
Irion said the litigation privilege in §47(b) only attaches to communications when there is a serious, good-faith intention to pursue legal action and will not be applied to hollow threats.
Turning to the record, she said:
“From the superior court’s express findings that Kovtun ‘threaten[ed] baseless litigation’ without ‘good faith,’ we infer that Kovtun’s communications were merely a tactical ploy that did not relate to an imminent lawsuit that Kovtun seriously proposed and actually contemplated in good faith for the purpose of resolving a custody dispute between the parties. Whether [litigation was actually seriously considered] was a triable issue of fact…and on appeal, we defer to the superior court’s express and implied factual findings that are supported by substantial evidence.”
The jurist said that in the present case, “Kovtun’s insistence that all her communications were cloaked by the privilege because ‘future legal action was contemplated by [her client] absent a signed custody sharing agreement’ disregards the superior court’s factual findings,” remarking:
“Even if Kovtun’s communications could be interpreted as an indication of her good faith intent to resolve a dispute as Kovtun contends, we must resolve any conflict in the evidence and draw all reasonable inferences to support the court’s conclusion that the litigation privilege did not apply.”
Under those circumstances, she opined:
“Kovtun lacked the required good faith intention to bring a suit while she engaged in the outright abuse of an unrepresented opposing party. The superior court appropriately rejected Kovtun’s argument that the September 2017 meeting was an informal prelitigation settlement conference where she was merely advocating on behalf of her client. Ample evidence supports the superior court’s express and implied factual findings, and on this record, we conclude Kovtun’s communications during the meeting did not relate to litigation that was then contemplated in good faith and under serious consideration. Without a good faith intention to bring suit, Kovtun cannot shield herself from liability under the guise of zealous advocacy.”
The case is Shenefield v. Kovtun, D083018.
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