Federal Court Holds Litigation Privilege Bars SCRA Claim Based On Inaccurate Military Affidavit

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Recently, the U.S. District Court for the Central District of California barred a claim for violation of Section 521 of the Servicemembers Civil Relief Act (SCRA) by holding that California’s litigation privilege applies to military affidavits. William v. U.S. Bank Nat’l Assoc., No. 12-748, 2013 WL 571844 (C.D. Cal. Feb 13, 2013). While the plaintiff was serving overseas, the defendants filed an inaccurate affidavit stating that the plaintiff was not on active military duty, and on that basis obtained a default judgment of unlawful detainer against the plaintiff. After returning from military service, the plaintiff sued the defendants for violating the SCRA by filing an inaccurate military affidavit. The court held that California’s litigation privilege, which protects communications made in the course of litigation, applied to the military affidavit and thus barred the plaintiff’s claim based on the accuracy of that affidavit. Although the borrower could—and successfully did—move to set aside the default judgment, the litigation privileged barred this secondary suit. The court also held that federal law did not preclude the state-law litigation privilege because the alleged violations occurred prior to enactment of a private right of action under the SCRA.

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