NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

Plaintiff Anthony T. Johnson appeals the judgment of dismissal entered in his lawsuit against Donald Schweitzer and Casey Marticorena ("defendants") following the trial court's grant of their special motion to strike the complaint pursuant to Code of Civil Procedure, section 425.16 (the "anti-SLAPP motion"). Finding no error, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff and Leigh Ann Whetstone, parents of two young daughters, have been adversaries in a family law custody matter for the past five years. Defendants have represented Ms. Whetstone in that litigation, which has been contentious.

On May 6, 2010, plaintiff, in pro. per., filed his complaint against defendants and Ms. Whetstone, who is not a party to this appeal, alleging a single cause of action for libel. The alleged libel consisted principally of a letter dated March 3, 2010 from defendant Schweitzer to plaintiff's counsel, Andrew Klausner, which complained about an email from plaintiff to Ms. Whetstone which the latter considered harassing and intimidating. The letter purported to supplement the documentation of "hundreds of hateful and harassing emails from [plaintiff]" and other "harassing behavior associated with [plaintiff's] calls to the minor children." The letter demanded that plaintiff "cease this `self-help' behavior as it is in violation of restraining orders1 and inappropriate considering both he and the children are represented by counsel." Additionally, plaintiff alleged that he had been slandered by defendant Marticorena in a chambers conference with the judge presiding over the family law case.

Defendants filed their anti-SLAPP motion, which was heard on August 4, 2010. The trial court noted that plaintiff did not submit a declaration in opposition to the motion, but simply attached a verification to his memorandum of points and authorities. The court stated "that's not a declaration, and I have not considered the plaintiff's memorandum of points and authorities as evidence." The court granted the anti-SLAPP motion and dismissed the case. Plaintiff timely appealed that ruling.

DISCUSSION

This court reviews de novo the trial court's grant of an anti-SLAPP motion to strike. "[W]e employ the same two-pronged procedure as the trial court in determining whether the anti-SLAPP motion was properly granted." (Mendoza v. ADP Screening and Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1652.) Thus, we review the entire record to determine whether the parties have met their respective burdens.

That two-pronged procedure consists of the following: "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken `in furtherance of the [defendant's] right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) "If the court finds the defendant has made the requisite showing, the burden then shifts to the plaintiff to establish a `probability' of prevailing on the claim by making a prima facie showing of facts that would, if proved, support a judgment in the plaintiff's favor." (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 906.) "In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (Code Civ. Proc., § 425.16, subd. (b)(2).) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute — i.e., that arises from protected speech or petitioning and lacks even minimal merit — is a SLAPP, subject to being stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89, italics in original.)

Here, the trial court determined that defendants had established that the acts which formed the basis for plaintiff's lawsuit consisted entirely of statements made in a judicial proceeding, a recognized exercise of one's right of petition. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 648, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc., supra, at p. 68, fn. 5; Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) Plaintiff does not challenge the trial court's ruling with respect to the first prong of the anti-SLAPP analysis.

Plaintiff does, however, challenge the trial court's ruling that he failed to meet his burden of showing a probability of prevailing. But he limits his argument to the court's ruling that his points and authorities, to which he had attached a verification, was not a declaration, and that he had presented no evidence on the question of the merits of his lawsuit. This is not a winning strategy, for it is not sufficient for an appellant to point out an error in the proceedings below. Even were plaintiff to establish that the verification transformed his points and authorities into an evidentiary declaration (we express no opinion on the matter), he must also establish that the trial court's error was prejudicial to him — that is, had the court considered his declaration as evidence, his lawsuit would not have been dismissed. This he cannot do.

Plaintiff cannot prevail in this action because his claim for libel is barred by the litigation privilege. As explained by our Supreme Court most recently in Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, "[t]he litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a `publication or broadcast' made as part of a `judicial proceeding' is privileged. This privilege is absolute in nature, applying `to all publications, irrespective of their maliciousness.' (Silberg v. Anderson (1990) 50 Cal.3d 205, 216 [].) `The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.' (Id. at p. 212.) The privilege `is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.' (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057)." (Action Apartment Assn., Inc. v. City of Santa Monica, supra, at p. 1241.)

"Both section 425.16 and Civil Code section 47 are construed broadly, to protect the right of litigants to `the utmost freedom of access to the courts without the fear of being harassed subsequently by derivative tort actions.' (Rubin v. Green (1993) 4 Cal.4th 1187, 1194; see § 425.16, subd. (a); Briggs [v. Eden Council for Hope & Opportunity (1999)] 19 Cal.4th [1106,] 1119.) Thus, it has been established for well over a century that a communication is absolutely immune from any tort liability if it has `"some relation"' to judicial proceedings. (Rubin v. Green, supra, 4 Cal.4th at p. 1193.)" (Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5.) The privilege applies to defamatory statements made by attorneys about the parties to an action. (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 31-32 [privilege applied to attorney's voice mail message accusing sister of conspiring to defraud her brother and threatening to take "appropriate action"]; Healy v. Tuscany Hills Landscape & Recreation Corp., supra, at p. 5 [privilege applied to allegedly defamatory statements in letter by attorney for homeowners association to association members about one of the residents].)

Here, the basis of plaintiff's claim consists of statements made by defendants in correspondence to plaintiff's counsel regarding the family law proceeding, as well as statements made in an in-chambers conference with the family law judge presiding over the custody dispute. Even if the trial court deemed plaintiff's memorandum of points and authorities a declaration, and admitted it into evidence, nothing contained therein can overcome these indisputable facts.

DISPOSITION

The judgment is affirmed. Defendants to recover their costs on appeal.

We concur:

TURNER, P.J.

MOSK, J.