Rusheen v. Cohen

Filed 1/26/04 Rusheen v. Cohen CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
TERRY RUSHEEN,
Cross-Complainant and
Appellant,
v.
BARRY E. COHEN et al.,
Cross-Defendants and
Respondents.
B152948
(Los Angeles County
Super. Ct. No. EC022640)
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles
W. Stoll, Judge. Reversed.
Law Office of Robert F. Henry and Robert F. Henry for Cross-Complainant and
Appellant.
Lewis Brisbois Bisgaard & Smith, John R. Feliton, Jr., Elizabeth G. O’Donnell
and Raul L. Martinez for Cross-Defendants and Respondents.
_________________________________

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Terry Rusheen appeals from an order striking his cross-complaint as a SLAPP suit
(strategic lawsuits against public participation) under Code of Civil Procedure
section 425.16 (hereafter “section 425.16”). He argues that cross-defendants Barry E.
Cohen and his law firm lacked standing to bring a special motion to strike under section
425.16 because this cross-complaint is based on Cohen’s conduct in representing the
interests of his clients in the underlying action. We conclude, first, that Cohen has
standing. Second, we conclude that Rusheen has demonstrated a probability that he will
prevail on the claim because the litigation privilege of Civil Code section 47, subdivision
(b) does not bar the entire cause of action for abuse of process. The trial court erred in
granting the special motion to strike.
FACTUAL AND PROCEDURAL SUMMARY
Terry Rusheen’s father, Henry Rusheen, sold the house Rusheen was occupying to
Niki Han and Maurice Abikzer. Rusheen refused to move out after escrow closed,
leading Han and Abikzer to attempt an eviction. This led to three legal actions, one
brought by Han and Abikzer and two by Rusheen.1
In June 1997, Abikzer and Han filed
motions to declare Rusheen a vexatious litigant in each of these three cases, and to
require him to post a bond.2
The trial court ordered Rusheen to move out and awarded
Abikzer and Han attorney fees of $3,150. Rusheen’s applications for temporary
restraining orders were denied. The trial court issued a stay preventing him from filing
1
Case Nos. ES004477 - Abikzer and Han v. Rusheen (Abikzer and Han sought a
writ of possession of the real property, an order to show cause re harassment, and a
temporary restraining against Rusheen); ES004472 - Rusheen v. Han (Rusheen sought an
order to show cause re harassment and temporary restraining order, Abikzer not named as
a defendant); ES004476 - Rusheen v. Abikzer (Rusheen sought an order to show cause re
harassment and temporary restraining order, Han not named as defendant).
2
From this point forward, we refer to appellant as “Rusheen.”

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any pleadings, motions or other documents except those relevant to the vexatious litigant
motions until those motions could be heard.
Before the motions were heard, Han filed a new action, Han v. Rusheen
(EC022640), for property damage, fraud, assault and battery, and unjust enrichment. On
motion by Han and Abikzer, the trial court froze $30,000 of Rusheen’s assets pending the
vexatious litigant hearing. After the hearing, the trial court found Rusheen to be a
vexatious litigant, and entered a formal order stating that a default would be entered in
favor of Han in case No. EC022640 if Rusheen failed to post a $15,000 cash bond before
August 4, 1997.
Rusheen failed to post the bond. Default judgment against him was entered on
February 24, 1998. The trial court denied Rusheen’s motion to vacate the default and the
vexatious litigant order. His motion for reconsideration also was denied. On his appeal
(Han v. Rusheen, B125618), we reversed the trial court in an unpublished opinion. We
held there was insufficient evidence to support the finding that Rusheen was a vexatious
litigant. We concluded the trial court was without authority to issue the vexatious litigant
order, the order freezing $30,000 of Rusheen’s assets, and the order requiring him to post
a $15,000 bond or suffer a default in case No. EC022640. We also reversed the default
judgment because the erroneous trial court orders precluded Rusheen from filing any
pleading unless he first posted the $15,000 bond.
On remand, the trial court granted Rusheen’s motion to vacate the default
judgment and the other orders. Rusheen then initiated the cross-complaint at issue in the
present appeal. In June 2000, he filed a first amended cross-complaint against Han,
Abikzer, Cohen and his law firm,3
and others. In that pleading he alleged causes of
action for abuse of process, conversion, negligence, and intentional infliction of
emotional distress.
3
Rusheen sued Cohen individually, and also the Law Offices of Cohen & Cohen
and Barry Cohen, a professional corporation. For convenience, we refer to these entities
collectively as “Cohen.”

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Cohen demurred based on the litigation privilege (Civ. Code, § 47, subd. (b)) and
Civil Code section 1714.10, which prohibits a party from filing a cause of action against
an attorney for conspiring with his client unless plaintiff first demonstrates a probability
of prevailing in the action. The trial court sustained Cohen’s demurrer without leave to
amend as to the first and third causes of action (abuse of process and negligence). Since
Cohen and his firm were not named as cross-defendants in the second and fourth causes
of action, the order on the demurrer disposed of all causes of action against the Cohen
cross-defendants. Apparently no order of dismissal as to Cohen was entered.
On January 29, 2001, Rusheen filed a second amended cross-complaint, again
naming Cohen and his law firm as cross-defendants. They were named in the third cause
of action for abuse of process and in the fifth cause of action for declaratory relief and
apportionment of fault. The cause of action for abuse of process alleged that Cohen made
an illegal vexatious litigant motion against Rusheen, failed to properly serve the
complaint, took an improper default judgment against him without proper notice,
permitted his client to execute on the judgment in Nevada, and filed false declarations on
the issue of service.
At this point, Cohen, who had been appearing in propria persona, retained counsel
and brought a special motion to strike the second amended cross-complaint under the
anti-SLAPP suit statute, section 425.16.4
Because he was sued for conduct in connection
with his representation of Han in the action against Rusheen, Cohen argued there was no
4
On appeal, Cohen also seeks to justify striking the cross-complaint because the
demurrer to the first amended cross-complaint had been sustained without leave to
amend. He did not make that argument to the trial court. While the second amended
cross-complaint was subject to being stricken as unauthorized, there was no motion to do
so by Cohen, and the trial court did not raise the issue sua sponte. (See Ricard v.
Grobstein, Goldman, Stevenson, Siegel, LeVine & Mangel (1992) 6 Cal.App.4th 157,
162.) Instead, the second amended cross-complaint was stricken solely on the ground
that it was an improper SLAPP action. We consider the matter solely on that issue. (See
Black v. Financial Freedom Senior Funding Corp. (2001) 92 Cal.App.4th 917, 925, fn.
9.)

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reasonable probability that Rusheen would prevail on the cross-complaint since his
conduct was privileged under Civil Code section 47, subdivision (b). The trial court
granted the motion, struck the cross-complaint as to Cohen and his firm, and entered
judgment in their favor. Cohen’s motion for attorney’s fees was granted and $9,926 in
fees was awarded. This appeal is from the judgment.
After we filed our original opinion in this matter on April 11, 20003, Cohen
petitioned for rehearing. We granted rehearing and ordered counsel to file supplemental
briefs confined to the question of the applicability of the opinion in Drum v. Bleau, Fox
& Associates (2003) 107 Cal.App.4th 1009.
DISCUSSION
I
We independently review the trial court’s order granting a special motion to strike
under section 425.16. (Kajima Engineering & Construction, Inc. v. City of Los Angeles
(2002) 95 Cal.App.4th 921, 929.)
Rusheen first challenges Cohen’s standing to invoke the anti-SLAPP statute to
strike the abuse of process cause of action. Rusheen argues the cross-complaint
implicated only Cohen’s conduct in representing Han in the underlying litigation, and
that Cohen was advancing his client’s First Amendment rights rather than his own, and so
cannot rely on section 425.16. Rusheen relies on Shekhter v. Financial Indemnity Co.
(2001) 89 Cal.App.4th 141. In that case, the court concluded that attorneys who were
sued for their conduct in representing clients in litigation against a cross-complainant had
standing to move to strike the cross-complaint under section 425.16. The Shekhter court
reasoned that allegations of the cross-complaint arose from the exercise of free
expression rights by the attorney and his firm, in contacting the media about the
underlying insurance fraud case against Shekhter. (Id. at pp. 152-154.) This conclusion
was based on the provision in section 425.16, subdivision (b)(1) that “[a] cause of action
against a person arising from any act of that person in furtherance of the person’s right of
petition or free speech under the United States or California Constitution in connection

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with a public issue shall be subject to a special motion to strike . . . .” (Italics added.)
The Shekhter court concluded that the term “‘that person’” means that the moving party
must “be the individual who is or was being sued for exercise of ‘that person[’s]’ right of
petition or free expression.” (Id. at p. 152.)
The court went on to observe: “We recognize that in some cases a lawyer may not
be ‘that person’ within the meaning of section 425.16, subdivision (b)(1) exercising free
expression or petition rights. Under some circumstances, ‘that person’ will merely be the
client but not the attorney.” (Shekhter v. Financial Indemnity Co., supra, 89 Cal.App.4th
at p. 152.)
Based on Shekhter, Rusheen argues that a defendant attorney’s own right to
petition must be implicated by the action against him, not just the right of his clients, in
order to have standing under section 425.16. We do not agree. The Shekhter court
addressed only the free speech prong of the anti-SLAPP statute and did not consider
whether an attorney could bring a special motion to strike based on the exercise of the
attorney’s right to petition as counsel in the underlying action. (Shekhter v. Financial
Indemnity Co., supra, 89 Cal.App.4th at p. 154.) 5
Here we consider the attorney’s right
based on the exercise of the right to petition.
The third cause of action of the second amended cross-complaint alleges abuse of
process. We shall discuss the specific ways in which Rusheen claims that process was
abused. At this point, we observe that conduct that falls within the tort may also trigger
application of the anti-SLAPP statute. Section 425.16, subdivision (e) provides that an
“‘act in furtherance of a person’s right of petition or free speech under the United States
or California Constitution in connection with a public issue’ includes: (1) any written or
oral statement or writing made before a legislative, executive, or judicial proceeding, or
5
In a later case, the same court determined that a defendant attorney has standing
to bring a special motion to strike under section 425.16 where the complaint alleges only
conduct in relation to litigation in which the attorney represented a client. The Supreme
Court granted review in that case and issued a decision which did not address the
standing question. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728.)

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any other official proceeding authorized by law; (2) any written or oral statement or
writing made in connection with an issue under consideration or review by a legislative,
executive, or judicial body, . . .” As the Supreme Court explained in Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113: “[P]lainly read, section
425.16 encompasses any cause of action against a person arising from any statement or
writing made in, or in connection with an issue under consideration or review by, an
official proceeding or body.” The Briggs court held that the constitutional right to
petition the government includes civil litigation. (Id. at p. 1115.)
The approach suggested by Rusheen is inconsistent with the purpose of the anti-
SLAPP statute. The Legislature amended section 425.16 to add an express statement of
its intent: “The Legislature finds and declares that there has been a disturbing increase in
lawsuits brought primarily to chill the valid exercise of the constitutional rights of
freedom of speech and petition for the redress of grievances. The Legislature finds and
declares that it is in the public interest to encourage continued participation in matters of
public significance, and that this participation should not be chilled through abuse of the
judicial process. To this end, this section shall be construed broadly.” (§ 425.16, subd.
(a).) If attorneys who are sued for their conduct in representing clients in litigation are
not entitled to invoke section 425.16, two results contrary to this declared intent would
occur. First, if clients are unable to retain representation because counsel fear a
retaliatory lawsuit, the constitutional rights of the clients would be chilled. Second,
attorneys have a right to practice their profession without fear of lawsuits brought for the
primary purpose of chilling their participation in the judicial process. An attorney is
subject to liability for malicious prosecution or abuse of process, but the attorney has a
right to test the lawsuit through a special motion to strike under section 425.16. We
conclude that Cohen and his firm had standing to bring a special motion to strike under
section 425.16.

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II
Rusheen argues that the special motion to strike was improperly addressed to the
entire complaint, rather than specific causes of action. This argument mischaracterizes
the motion to strike. Cohen specifically addressed the cause of action for abuse of
process in his motion.
III
Finally, Rusheen argues that he sustained his burden of showing a probability of
success on the merits of his cause of action for abuse of process.
A defendant moving to strike under section 425.16 must first “make a prima facie
showing that the plaintiff’s cause of action arises from an act in furtherance of the
defendant’s First Amendment rights, that is, from any one of the four types of conduct”
listed in subdivision (e). (Paul v. Friedman (2002) 95 Cal.App.4th 853, 863.) Once the
defendant has satisfied this test, the burden shifts to the plaintiff to establish that there is a
probability that he or she will prevail on the claim. (§ 425.16, subd. (b)(1); Paul v.
Friedman, supra, 95 Cal.App.4th at p. 863.) “[I]n order to establish the requisite
probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have ‘“stated and
substantiated a legally sufficient claim.”’ [Citations] ‘Put another way, the plaintiff
“must demonstrate that the complaint is both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited.”’ [Citations.]” (Navellier v. Sletten (2002) 29
Cal.4th 82, 88-89.)
A. The Litigation Privilege
Cohen argues that Rusheen cannot meet this standard because the cause of action
for abuse of process is barred by the litigation privilege of Civil Code section 47,
subdivision (b). Civil Code section 47 provides: “A privileged publication or broadcast
is one made: [¶] . . . [¶] (b) In any . . . judicial proceeding, . . .” To be privileged, a
statement must (1) be made in a judicial proceeding, (2) by litigants or other authorized

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participants, (3) aim to achieve the litigation’s objects, and (4) have some logical
connection or relation to the proceeding. (Silberg v. Anderson (1990) 50 Cal.3d 205,
212.)
B. Privilege Applies in Special Motion to Strike
In reply, Rusheen seems to argue that the litigation privilege does not apply at all
to a special motion to strike under section 425.16. He cites Jarrow Formulas, Inc. v. La
Marche, supra, 97 Cal.App.4th 1, 17-18, for the proposition that the anti-SLAPP statute
controls rather than the litigation privilege. The Supreme Court granted review in Jarrow
and it may not be cited as authority.6
The court in Sipple v. Foundation For Nat.
Progress (1999) 71 Cal.App.4th 226 applied Civil Code section 47 in concluding that the
plaintiff had not shown a probability of success against the defendants and affirmed the
trial court’s order granting a special motion to strike under section 425.16. We agree that
Civil Code section 47 may be the basis for a finding that the plaintiff has not shown a
probability of success as required under section 425.16.
C. Privilege for Communicative Conduct
Rusheen argues that neither section 425.16 nor the litigation privilege has
“eliminated” the tort of abuse of process. We agree. In an opinion decided shortly before
we issued our original opinion in this case, Drum v. Bleau, Fox & Associates (2003) 107
Cal.App.4th 1009, Division Eight of this district concluded that a plaintiff had established
a prima facie case of abuse of process, not barred by the litigation privilege, based on the
defendant’s conduct in levying on property pursuant to a writ of execution.
6
The Supreme Court decided Jarrow Formulas, Inc. v. LaMarche, supra, 31
Cal.4th 728 after we granted rehearing. That decision does not directly address the
applicability of the litigation privilege in an anti-SLAPP action. But in rejecting an
analogy between the litigation privilege and the anti-SLAPP statute, the court observed
that the litigation privilege “enshrines a substantive rule of law that grants absolute
immunity from tort liability for communications made in relation to judicial proceedings
[citations].” (Id. at p. 737.)

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The Drum court observed that, on at least four occasions, the California Supreme
Court had emphasized the distinction between communication and conduct in applying
the privilege. (Drum v. Bleau, Fox & Associates, supra, 107 Cal.App.4th at pp. 1024-
1026.) It concluded that the failure to distinguish between conduct and communication
“runs the risk of essentially eliminating the tort of abuse of process, something we do not
believe the Legislature intended when it amended the litigation privilege in the 1873-
1874 session to include publications made in judicial proceedings.” (Drum, at p.1028.)
We, too, recognize this critical distinction and apply these principles to Rusheen’s cause
of action for abuse of process.
D. Rusheen’s Claim for Abuse of Process
Rusheen’s cause of action for abuse of process alleges Cohen abused the court’s
process by: (1) making an illegal vexatious litigant motion against Rusheen; (2) failing
to properly serve and give notice of the complaint; (3) taking an improper default
judgment without proper notice; (4) failing to provide a statement of damages as required
to support a default judgment; (5) permitting their clients (Han and Abikzer) to “cause to
be filed a sister-state judgment” which resulted in the taking of his property; and (6)
obtaining inconsistent and fraudulent declarations concerning the purported service of
legal documents on Rusheen to prevent the trial court from vacating the default judgment,
leading to the delay and expense of an appeal from the default judgment.
Our review is not confined to the cross-complaint, but must include the evidence
submitted by the parties on the special motion to strike. As to each alleged abuse of
process, we must determine whether a cause of action for abuse of process is stated, and
if so, whether the litigation privilege applies. “To succeed in an action for abuse of
process, a litigant must establish two elements: that the defendant (1) contemplated an
ulterior motive in using the process; and (2) committed a willful act in the use of the
process not proper in the regular conduct of the proceedings. [Citations.]” (Brown v.
Kennard (2001) 94 Cal.App.4th 40, 44.)

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1. Vexatious Litigant Motion
In his opposition to the motion to strike, Rusheen’s only reference to the vexatious
litigant motion was that Cohen “was totally without merit” in bringing it. In support, he
cites to exhibit 8 of his request for judicial notice, which was part of the opposition to the
motion to strike. Exhibit 8 is Rusheen’s motion to reconsider the denial of his motion to
vacate the default judgment and order declaring him a vexatious litigant, a 16-page
document. Our record omits pages 2 through 4 of this motion, but includes the
declaration of Rusheen’s attorney, Anne G. Koza. This declaration states that the only
proof of service of the vexatious litigant motion on Rusheen showed it was mailed on
July 8, 1997, although it was filed on June 20, 1997 (the hearing was scheduled for July
18, 1997). The declaration also notes that Cohen filed a proof of service of various
pleadings on October 7, 1997, including declarations in support of the motion to declare
Rusheen a vexatious litigant and the order declaring Rusheen a vexatious litigant. This
was after the hearing on the motion.
Ms. Koza’s declaration challenges the authenticity of declarations submitted by
Cohen on behalf of Han and Abikzer regarding this October 7, 1997 service. She points
out discrepancies in the declarations. Her declaration is rambling and stream of
consciousness.
This showing is insufficient to establish that the vexatious litigant motion was
brought with the requisite ulterior motive or that it constituted “‘a willful act in the use of
the process not proper in the regular conduct of the proceedings.’” (Brown v. Kennard,
supra, 94 Cal.App.4th at p. 44.) Since Rusheen failed to show a probability of success
action based on the vexatious litigant motion, we need not consider whether defense of
the litigation privilege applies.
2. Improper Default Judgment
The remaining bases for the abuse of process cause of action relate to Cohen’s
alleged failure to serve the complaint and notice of the default proceedings. The
declaration of Ms. Koza, which we discussed above, raises factual issues about the truth

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of declarations filed by Cohen regarding the service of these pleadings. The allegation is
that these documents were not properly served on Rusheen or his counsel in order to
obtain the default judgment, and that the declarations submitted by Cohen were perjured.
Based on these allegedly false declarations of service, Rusheen argues that Cohen
enabled his clients to execute on an improperly obtained default judgment.
In Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, a cause of action for abuse of
process was established where the allegation was that false declarations of service of
process were submitted to the court to obtain a default judgment. (Id. at pp. 1463-1466.)
The Kappel court held: “Thus, while [the defendant’s] institution of a suit against
plaintiff . . . did not satisfy the second requirement of a cause of action for abuse of
process, knowing execution of a false declaration of service by the defendants . . . would
constitute the necessary ‘willful act,’ i.e., one which is not proper in the regular conduct
of the proceeding.” (Id. at p. 1466.)
As in Kappel, Rusheen has alleged that false declarations of service of process
were submitted to obtain a default judgment. This adequately alleges a cause of action
for abuse of process. The remaining issue is whether this conduct falls within the
litigation privilege.
The Drum court distinguished between a court filing, which is communicative and
hence within this privilege, and action taken on the basis of the filing, which is not. In
Drum, the filing was a document in support of a writ of execution; actual execution of the
writ was not a “communication” within the ambit of the tort. (Drum v. Bleau, Fox &
Associates, supra, 107 Cal.App.4th at p. 1026.)
In his petition for rehearing, Cohen argued that we should distinguish Drum v.
Bleau, Fox & Associates, supra, 107 Cal.App.4th 1009 because the conduct at issue in
that case was both non-communicative and wrongful. He claims that his conduct was not
wrongful. He claims that the act of levying on a judgment procured through the use of
perjured proofs of service was not wrongful.
His argument is posited on an incorrect characterization of Rusheen’s position.
Cohen asserts that Rusheen presented no evidence that he was involved in the

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enforcement of the judgment in Nevada. This disregards the evidence that the default
judgment was procured with perjured proofs of service filed and served by Cohen. There
was an adequate showing that Cohen submitted false declarations of service of process in
order to obtain the default judgment that was later enforced by others in Nevada.
Rusheen alleges that Cohen was part of a conspiracy to obtain the default judgment
without proper notice and that Cohen’s conduct was essential to the ultimate enforcement
of the judgment. Thus, while Cohen’s filing of perjured documents was privileged as
communicative conduct under Civil Code section 47, the conspiracy in which he was
alleged to have participated culminated in the noncommunicative conduct of enforcing
the judgment; and therefore the Civil Code section 47 privilege does not apply.
As Cohen himself argues, “the distinction between communicative acts and
noncommunicative conduct ultimately hinges on the gravamen of the action . . . .”
(Navellier v. Sletten (2003) 106 Cal.App.4th 763, 771.) The Navellier court recognized
that “exceptional situations can arise where pleadings and conduct connected with
litigation are not privileged (see Yu v. Signet Bank/ Virginia [(2002)] 103 Cal.App.4th
[298] at p. 311 [action challenged location where suit was filed, not relief sought in the
complaint]; Stacy & Witbeck, Inc. v. City and County of San Francisco (1996) 47
Cal.App.4th 1, 7-8 [54 Cal.Rptr.2d 530] [claim for payment on public works project not
privileged even though claimant anticipated suing for sums claimed]).” (Ibid.) Here, the
gravamen of the action was a conspiracy to enforce a judgment obtained through the use
of perjured declarations of service. Under the reasoning of the court in Drum v. Bleau,
Fox & Associates, supra, 107 Cal.App.4th 1009, the filing of a perjured proof of service
may have been communicative but executing on the resulting default judgment was not.7
The litigation privilege therefore does not establish a complete defense to the abuse of
process cause of action.
Cohen relies on a line of cases which he contends applied the litigation privilege to
post-judgment collection activities. (Brown v. Kennard, supra, 94 Cal.App.4th 40, 49-
7
Of course, we express no opinion on the merits of the falsity claim.

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50; O’Keefe v. Kompa (2000) 84 Cal.App.4th 130; Merlet v. Rizzo (1998) 64 Cal.App.4th
53.) We agree with the Drum court’s treatment of these cases. That court recognized
that certain steps preliminary to the actual levy, such as filing an application for a writ of
sale, are communicative and therefore privileged, as the court held in Merlet v. Rizzo,
supra, 64 Cal.App.4th 53. (Drum v. Bleau, Fox & Associates, supra, 107 Cal.App.4th at
p. 1028.) But it disagreed with Brown v. Kennard, supra, 94 Cal.App.4th 40 and O’Keefe
v. Kompa, supra, 84 Cal.App.4th 130. In Brown, the abuse of process claim arose out of
the execution on exempt Social Security and retirement funds, which the court held
privileged. The Drum court concluded that the court in Brown “lost sight of the fact that
the essential nature of actually levying on exempt funds was not communication but was
action.” (107 Cal.App.4th at p. 1027.) It continued: “[I]t does not follow that, merely
because the application for the writ [of execution] -- essentially the statement by the
judgment creditor to the clerk that the creditor has a judgment and requests the issuance
of the writ -- is a privileged communication, subsequent acts in levying on property are
likewise privileged.” (Drum, at pp. 1027-1028.) For the same reason, it disagreed with
O’Keefe v. Kompa, supra, 84 Cal.App.4th 130, which found privileged execution on a
bank account. (Drum, at p. 1028, fn. 12.)
Cohen also argues that California does not recognize a cause of action based on
subornation of perjury or the submission of false evidence, citing Cedars-Sinai Medical
Center v. Superior Court (1998) 18 Cal.4th 1. In the passage on which Cohen relies, the
Supreme Court reviewed cases holding there is no civil remedy in damages based on
perjured trial testimony, withheld or concealed evidence, or false evidence. (Id. at pp. 9-
10.) In that case, the Supreme Court held that there is no tort remedy for intentional
spoliation of evidence if the spoliation victim knew or should have known of the
spoliation before the trial or other decision on the merits in the underlying action. (Id. at
pp.17-18.) The Cedars-Sinai opinion does not change our analysis. First, the cause of
action here is the recognized tort of abuse of process, which was not addressed in the
Supreme Court opinion. Rusheen is not attempting to allege a novel tort. Further, since
the allegation is that Cohen and his co-conspirators obtained a default judgment through

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the use of false proofs of service, it seems unlikely that Cohen can show that Rusheen
knew (or should have known) of the perjury before default judgment was entered.
Cohen also cites Silberg v. Anderson, supra, 50 Cal.3d 205, 214 for the
proposition that the reason litigants bear the burden of exposing false evidence during
trial is to avoid burdening the justice system with attacks on the integrity of the evidence
after the proceedings have concluded. But the gravamen of the complaint here is that
there were no proceedings because Cohen and his co-conspirators obtained a judgment
by default by using false proofs of service. Rusheen could hardly be limited to exposing
the perjury in a trial which did not take place.
Rusheen thus showed the requisite probability of prevailing on his cause of action
for abuse of process based on these allegations; the trial court erred in granting the
special anti-SLAPP motion to strike.
DISPOSITION
The judgment is reversed. Rusheen is to have his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, J.
We concur:
VOGEL (C.S.), P.J
HASTINGS, J.

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