Attig v. Graffam

Filed 3/22/06 Attig v. Graffam CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. A. Rex Victor, Judge. (Retired judge of the San Bernardino Superior Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed.

Law Offices of Wasserman & Miller and Arthur Wasserman for Plaintiff and Respondent.

Reid & Hellyer and Michael G. Kerbs for Defendants and Respondents.

1. Introduction

Plaintiff Laura Attig filed an action for abuse of process against defendants Jocer Enterprises, Inc., doing business as Castlebrook Barns (Castlebrook), and its owners, Spencer Graffam and Joy Graffam, on the ground that defendants inappropriately filed and served a temporary restraining order against her. The court granted defendant's special motion to strike under the anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute (Code Civ. Proc., § 425.16) and dismissed Attig's complaint.^[1] On appeal, Attig challenges the court's finding that she failed to establish a probability of prevailing on the merits of her claim. Attig also challenges the court's finding that defendants Spencer Graffam and Joy Graffam were not liable as individuals.

We conclude that the court properly found that Attig's abuse-of-process claim lacked merit because there was no evidence to show that Castlebrook acted with an ulterior motive and misused the judicial process. As argued by Castlebrook, we also conclude that the litigation privilege under Civil Code section 47, subdivision (b), provided an alternative basis for dismissing Attig's claim. We affirm the judgment.

2. Factual and Procedural History

On November 26, 2002, Castlebrook filed a complaint against Attig, a former employee, and her boyfriend, Thomas Hayes, for various causes of action, including breach of contract and misappropriation of trade secrets. Castlebrook terminated Attig after suspecting that she and Hayes, who owned his own business, stole customer lists and other trade secrets and used them to their own advantage. Shortly after filing its complaint, Castlebrook also filed an ex-parte application for a temporary restraining order (TRO). Spencer Graffam submitted his declaration in support of the TRO.

On December 12, 2002, the trial court granted Castlebrook's application and issued the TRO, which was scheduled to expire on January 1, 2003. As requested, the TRO contained several restrictions concerning the allegedly stolen trade secrets. The TRO also prevented Attig and Hayes from â€