This opinion affirms the denial of defendant ex-wife’s Anti-SLAPP motion in a defamation suit brought by an ex-nanny based on allegedly libelous accusations about the nanny’s sexual relationship with the ex-husband which wife filed in her marital dissolution action in support of an application for a domestic violence restraining order.  The crucial issue on the motion was whether the absolute litigation privilege applied to nix the nanny’s suit.  The decision finds that the divorce proviso (Civ. Code 47(b)(1)) applied to remove the protection of the litigation privilege from wife’s declaration.  The declaration was filed in her marital dissolution proceeding and its allegations concerned the nanny who was a third person against whom wife sought no relief in the marital dissolution proceeding.  Thus, the declaration fell squarely within the scope of section 47(b)(1)’s language even if the declaration supported a domestic violence prevention order that could have been sought in a separate proceeding to which the divorce proviso would not have applied.  The fact that wife secured the order she sought did not show that her declaration was truthful or made without malice as the basis for issuance of the order was unclear.

California Court of Appeal, Second District, Division 2 (Lui, P.J.); July 13, 2018; 2018 Cal. App. LEXIS 627