15 Jan 2019,

Rusheen v. Cohen: Reestablishing Litigation Privilege After Defendant Plays Coy

Trying to sweep problems under the metaphorical rug is never a good idea, especially in legal settings. If a judgement is filed against you, basically the only two options you have are acknowledging and complying, or acknowledging and trying to appeal. Pretending it doesn’t exist will just lead to a whole new set of issues and headaches, as one party learned the hard way in an interesting case back in 2006.


Attorney Gordon Levinson of Levinson Law Group wrote an article for Trial Bar News (May 2006 edition) that covered the interesting case of Rusheen v. Cohen out of California. The story begins with Niki and Maurice, represented by Cohen, purchasing a home from Rusheen’s father. When Rusheen did not leave the house, in which he lived, Niki and Maurice had to get a restraining order backed by the court to oust him.

However, the legal battle did not end there. Niki and Maurice were fed up with Rusheen’s own pleadings against them and filed to have him declared a vexatious litigant. Instead of defending himself, or at least explaining his side of the story, Rusheen slipped away to Nevada. This allowed both the vexatious litigant motion and another claim that stated he damaged the property go to default judgements against him. It appeared that Niki and Maurice had won their legal fight and the day.


After Niki and Maurice began work on the property that they rightfully owned due to the closure of escrow, Rusheen reappeared with his own motion to dismiss the defaulted judgements. Why? He claimed to have never been notified of the judgements at all, and that it was not fair that he had no chance to defend his argument. A trial court shot down his argument but that ruling was quickly reversed by an appellate court.

Not satisfied with that victory alone, Rusheen made a cross-complaint that said Cohen had abused the legal process to gain an advantage in the case. Allegations in his complaint ranged from stating Cohen did not serve the complaint properly, falsified the proof of service he did supply, and more. In this aspect of this lengthy story, a trial court protected Cohen’s actions by citing “the litigation privilege.” To no surprise, Rusheen filed for an appeal to counter this decision.


Were Cohen’s post-judgement collection efforts actually upheld by litigation privilege? Or, was Rusheen onto something in his counter-complaint? Superior courts weighed case laws from both Brown v. Kennard and Drum v. Bleau, Fox & Associates to look for the answer.

In Brown, it was maintained that litigation privilege could be extended to writs of execution and levy judgements against a debtor’s property. But Drum shot down the notion that such a levy was protected under litigation privilege. It was an unprecedented 50-50 split between appellate courts. When the appellate judge reviewing the Rusheen case sided with the cross-complaint and used the case law of Drum, the only solution was pushing it further up the legal hierarchy to the California Supreme Court.


The idea of false evidence, such as falsified filings and proof of service, is pretty bad. But with thorough investigation and an understanding of legal proceedings, even the cleverest of fake evidence can be uncovered and shot down, according to the California Supreme Court as it deliberated over the ongoing Rusheen case. What was worse, it eventually ruled, was a crush of litigation attempts and counter-claims that were rooted in nothing more than spite for losing a case. If the average defendant could really clog up the legal system with vengeful actions, then the whole of the civil court system would be jeopardized.

In acknowledgement of the reasons behind Rusheen’s actions in the first place – not liking the taste of a fair defeat – the California Supreme Court unanimously sided with Cohen and his use of litigation privilege. Specifically, it deemed that Cohen had made communicative efforts to contact Rusheen regarding the motions and default judgements against him. Had the actions taken through litigation privilege been noncommunicative by nature, it might have warranted an altogether opposite outcome. It also put down Drum’s case law argument and held that the post-judgement collection brought about through litigation privilege was permissible so long as the collections were logically or necessarily related to a communicative privilege or action. Essentially, if the privileged communication was meant to legitimize post-judgement collection, that collection effort was also privileged by connection.

What is Communicative & Noncommunicative, Though?

As the question is raised by Attorney Levinson in his published article, the California Supreme Court’s choosing to rely on the unclear legal definitions of communicative and noncommunicative actions may not have been completely necessary. If it had chosen to cite clearly established case law, the question about the “communicative nature,” or lack thereof, for other litigation tolls would never have been created. By the end of this case, legal world might have actually gotten more questions instead of answers.

Interested in the full article written by Attorney Levinson? Click here to view the PDF file version of that edition of Trial Bar News. Once again, page 11 is where his article, “Litigation Privilege Extends to Post-Judgment Collection Efforts”, can be found. Do you need the legal counsel of Attorney Levinson and the Levinson Law Group? Contact our Carlsbad personal injury attorneys today to get started.