Du Bois v. Boskovich

Background

Bekah Du Bois, proceeding without a lawyer, sued her ex-husband, Gary Stratton, and Stratton’s attorney, Anthony Boskovich. The complaint asserted fraud and negligent misrepresentation claims arising from an April 2016 marital-dissolution proceeding. Du Bois alleged that she and Stratton agreed to waive spousal support and that she also agreed to extend the limitations period for a related malicious-prosecution matter. The waiver was filed in family court in July 2016.

Du Bois alleged that Stratton had remarried in October 2015 and that the defendants misstated the nature of Stratton’s finances. She claimed that the defendants had a duty to disclose this information and that she would not have agreed to waive spousal support if she had known the truth. She alleged that she discovered Stratton’s remarriage in May 2017 and later learned during a deposition that Boskovich knew about it before the waiver was executed.

Motion to strike Boskovich’s claims

Boskovich moved to strike the claims under California’s anti-SLAPP statute. That statute provides a procedure for striking claims arising from protected speech or petitioning activity unless the plaintiff shows a probability of prevailing. The court applied the statute’s two-step test: first, whether the claims arose from protected activity, and second, whether Du Bois showed a reasonable probability of success.

The court found that Du Bois’s claims against Boskovich arose from protected activity because they concerned his statements, omissions, and negotiations as Stratton’s attorney in the family-court proceeding. The court rejected Du Bois’s argument that the statute did not apply because she relied partly on omissions rather than affirmative statements. It explained that the claims also alleged affirmative misrepresentations about Stratton’s finances and that protected activity can include related omissions.

The court then found that Du Bois could not show a probability of prevailing. It concluded that California’s litigation privilege barred the claims against Boskovich. That privilege protects communications made in a judicial proceeding by an authorized participant, to further the proceeding’s objectives, and with a logical connection to the proceeding. The court found those requirements met because Boskovich’s alleged statements and omissions concerned negotiations over spousal support in the marital-dissolution case.

The court also held that the claims were barred by the statutes of limitations. It determined that Du Bois’s negligent-misrepresentation and nondisclosure claims had to be filed within one year after discovery of the alleged wrongdoing. Based on her allegation that she discovered the relevant information in May 2017, the deadline was May 17, 2018. The court determined that her intentional-misrepresentation and nondisclosure claims ordinarily had a three-year deadline of May 17, 2020. Even after applying temporary COVID-19 tolling, the court calculated the deadline as November 11, 2020. Du Bois filed this action on April 30, 2021.

The court therefore granted Boskovich’s motion to strike and dismissed the causes of action against him with prejudice. It terminated as moot Boskovich’s separate motion to dismiss.

Stratton’s motion to dismiss

Stratton moved to dismiss the claims against him, arguing in part that they were barred by the three-year statute of limitations for fraud. Du Bois argued that she did not know about an alleged conspiracy to commit fraud until information was given during a later deposition. The court relied on Du Bois’s own allegation that she discovered Stratton’s remarriage in May 2017 and concluded that the claims against Stratton were time-barred. The court therefore granted Stratton’s motion to dismiss.

Disposition

Judge Haywood S. Gilliam, Jr. granted Boskovich’s motion to strike, terminated as moot Boskovich’s motion to dismiss, and granted Stratton’s motion to dismiss. The court found that the complaint’s deficiencies could not be cured by amendment, dismissed the case without leave to amend, directed the clerk to enter judgment for the defendants, and closed the case.