Kyle Zoellner v. Eric Losey

Background

Defendants moved for judgment on the pleadings concerning the single claim remaining in Kyle Christopher Zoellner’s fifth amended complaint. The operative complaint had asserted nine claims against 11 Defendants. The court had previously allowed the ninth claim to continue, describing it as “wrongful threat of criminal prosecution” but construing it as an intentional infliction of emotional distress claim. That claim was separated from the other claims and stayed.

The complaint alleged that Defendants’ counsel, acting as each Defendant’s agent, tried to pressure Zoellner to dismiss the lawsuit by threatening him with a new prosecution related to David Josiah Lawson’s death while offering not to file further criminal charges if he dismissed the case. The complaint identified four alleged occasions, particularly December 15 and December 21, 2021. The claim was asserted against all Defendants.

The opinion also explains that the malicious prosecution claim against Eric Losey had gone to trial. The jury made findings favorable to Zoellner on the elements submitted to it, but the court determined that Zoellner had not proved the lack-of-probable-cause element, which the judge—not the jury—was required to decide. The trial verdict therefore favored Losey.

Legal standard

Judgment on the pleadings under Federal Rule of Civil Procedure 12(c) tests the legal sufficiency of a claim. The court accepts the complaint’s factual allegations as true and may grant the motion when there is no material factual dispute and the moving party is entitled to judgment as a matter of law.

California litigation privilege

California Civil Code section 47(b) provides an absolute privilege for qualifying communications made in a judicial proceeding. The court identified four requirements: the communication must be made in a judicial or quasi-judicial proceeding; by a litigant or other participant authorized by law; to achieve the proceeding’s objectives; and with some connection or logical relationship to the action. The privilege can apply to communications outside the courtroom, including settlement negotiations, and it directly affects liability rather than merely limiting the use of evidence.

Application

The court construed the allegations in the light most favorable to Zoellner but held that the claim was barred by the absolute litigation privilege. First, the alleged threats were communicated by Defendants’ counsel to Zoellner during his active civil case, so they were made in a judicial proceeding. Second, counsel was a participant authorized by law. Third and fourth, the alleged communications were made to obtain a resolution favorable to Defendants and were directly related to the lawsuit because they allegedly sought to convince Zoellner to dismiss it.

The court rejected Zoellner’s argument that the law-of-the-case doctrine prevented reconsideration. That doctrine generally encourages a court to follow an earlier ruling in the same case, but it is discretionary. The earlier order denying dismissal of this claim did not expressly discuss the litigation privilege, and the court concluded that any implied decision had occurred without meaningful analysis. The court therefore exercised its discretion not to apply the doctrine.

The court also rejected Zoellner’s waiver argument. Although Defendants had not asserted the privilege in their answer, the court held that an affirmative defense may be raised for the first time in a motion for judgment on the pleadings when the delay does not prejudice the plaintiff. The court found no prejudice because the privilege would have been dispositive if raised earlier and the claim had been stayed, so the parties had not invested resources in it in a way that caused prejudice.

Finally, the court rejected Zoellner’s argument that the court had treated him unfairly by raising the privilege. The court stated that it had identified the issue at a case-management conference, recognized that Defendants bore the burden of proving the affirmative defense, and held them to that burden. The court also described several instances in which it had raised issues that benefited Zoellner, including excluding certain defense evidence and allowing him to depose and call a witness whose late disclosure was justified.

Disposition

The court held that the absolute litigation privilege precluded Zoellner’s wrongful-threat-of-criminal-prosecution/intentional-infliction-of-emotional-distress claim. Judge Jacqueline Scott Corley granted Defendants’ motion for judgment on the pleadings and stated that Defendants were entitled to judgment as a matter of law on that claim. The order disposed of the motion listed as Docket No. 412.