7/27/06 (this opinion should precede companion case, S128429, filed same date)
IN THE SUPREME COURT OF CALIFORNIA
PEGGY J. SOUKUP,
Plaintiff and Respondent,
) S126715
v.
Ct.App. 2/5 B152759
LAW OFFICES OF HERBERT HAFIF et al., )
Los Angeles County
Defendants and Appellants;
Super. Ct. No. BC247941
PEGGY J. SOUKUP,
Plaintiff and Respondent,
) S126864
v.
Ct. App. 2/5 B154311
RONALD C. STOCK,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BC247941
In this case, we determine whether a litigant whose action was dismissed
under the anti-SLAPP statute (Code Civ. Proc., § 425.16) may, in turn, invoke that
statute as a defense to a subsequent action for malicious prosecution and abuse of
process. 1 Peggy J. Soukup was sued by her former employers. She obtained
dismissal of their action under the anti-SLAPP statute and then sued them for
1
“SLAPP” is an acronym for “strategic lawsuit against public participation.”
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) All
further unspecified statutory references are to the Code of Civil Procedure.
1
malicious prosecution and abuse of process. Her former employers moved to
strike Soukup’s action as a SLAPP. The superior court denied the motion on the
ground that the anti-SLAPP statute did not apply under these circumstances. The
Court of Appeal reversed and we granted review.
While this case was pending, the Legislature amended the anti-SLAPP
statute to add section 425.18, which defines “any cause of action for malicious
prosecution or abuse of process arising from the filing or maintenance of a prior
cause of action that has been dismissed pursuant to a special motion to strike under
Section 425.16” as a “SLAPPback.” (§ 425.18, subd. (b)(1).) The Legislature
declared that SLAPPbacks “should be treated differently . . . from an ordinary
malicious prosecution action because a SLAPPback is consistent with the
Legislature’s intent to protect the valid exercise of the constitutional rights of free
speech and petition by its deterrent effect on SLAPP . . . litigation and by its
restoration of public confidence in participatory democracy.” (§ 425.18, subd.
(a).) Section 425.18 exempts SLAPPbacks from certain procedures otherwise
applicable to motions to strike under the anti-SLAPP statute and sets forth special
procedures that apply only to SLAPPbacks. Additionally, subdivision (h) of the
new section precludes the use of the anti-SLAPP statute to dismiss SLAPPbacks
“by a party whose filing or maintenance of the prior cause of action from which
the SLAPPback arises was illegal as a matter of law.” (§ 425.18, subd. (h).)
As we explain, section 425.18 applies to pending cases like the one before
us. We must determine, therefore, the effect of the amendment, and particularly
subdivision (h), on this case.2 We conclude that the filing and maintenance of
defendants’ underlying action cannot be characterized as “illegal as a matter of
2
The parties were given an opportunity to brief the applicability of section
425.18 on the instant case.
2
law” so as to exempt Soukup’s malicious prosecution action from the anti-SLAPP
statute. We further conclude that because, as demonstrated by its enactment of
section 425.18, subdivision (h), the Legislature has decided against a categorical
rule exempting SLAPPbacks from the anti-SLAPP statute, we are not at liberty to
read such a broader exemption into the statute. However, while we conclude that
defendants are not barred from using the anti-SLAPP statute to attempt to strike
Soukup’s action, there remains the question of whether Soukup has nonetheless
demonstrated a probability of prevailing on her malicious prosecution claim so as
to defeat defendants’ motion. (See Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 67.) On this question, we conclude, contrary to the Court of
Appeal, that she has demonstrated a probability of prevailing. Accordingly, we
reverse the Court of Appeal.
I. FACTS AND PROCEDURAL HISTORY3
A. Events Leading to the Filing of the Underlying Action
1. Pension Plan Controversy
Defendant Law Offices of Herbert Hafif (LOHH) is a professional
corporation whose sole stockholder is defendant Herbert Hafif (Hafif). Soukup
was employed at LOHH from September 1989 until June 1993, first as a legal
secretary and then as a paralegal.
3
Review of an order granting or denying a motion to strike under section
425.16 is de novo. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc.
(2004) 122 Cal.App.4th 1049, 1056.) We consider “the pleadings, and supporting
and opposing affidavits upon which the liability or defense is based.” (§ 425.16,
subd. (b)(2).) However, we neither “weigh credibility [nor] compare the weight of
the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff
[citation] and evaluate the defendant’s evidence only to determine if it has
defeated that submitted by the plaintiff as a matter of law.” (HMS Capital, Inc. v.
Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
3
Soukup was a participant in the firm’s employee pension plan. In October
1992, she and other employees of LOHH were informed that the plan was being
terminated and its assets would be distributed. A portion of the distribution was to
be in the form of nonregistered privately-held stock. Soukup was advised by her
stockbroker that this stock could not be deposited into her individual retirement
account because it was not publicly traded and the value placed on the stock by the
plan administrator could not be verified. She refused to sign the documentation
for the transfer of the stock. This led to a confrontation with Hafif in which,
according to Soukup, he told her “that if I did not sign . . . in the next two minutes,
he would come across the desk and kick my ass. I refused to sign the
documentation and left Herbert Hafif’s office shaking and returned to my office
downstairs.”4
In June 1993, six weeks after her confrontation with Hafif, Soukup
voluntarily terminated her employment with LOHH. On August 31, 1993, she
met with an investigator from the United States Department of Labor and
explained her concerns about the distribution of the LOHH employee pension
assets. She provided the investigator with documents regarding the pension plan.
The Department of Labor launched an investigation into LOHH’s pension plan but
ultimately no action was taken against LOHH.
In September 1995, Soukup filed an action in federal district court under
the Employment Retirement Income Security Act (ERISA) (29 U.S.C, § 1140) for
recovery of pension benefits. Similar actions were filed by other former LOHH
employees. LOHH filed motions to dismiss the actions, which the district court
then converted into summary judgment motions and granted. On appeal, however,
4
Hafif denied Soukup’s version of their exchange.
4
the Ninth Circuit reversed the summary judgment for LOHH on claims by Soukup
and other employees for plan benefits. Soukup and LOHH eventually settled the
federal action.
2. Phillip Benson’s Departure From LOHH and His Subsequent Wrongful
Termination Claim
Phillip Benson was employed at LOHH as an associate attorney during
much of the time that Soukup worked there. Soukup and Benson spoke on almost
a daily basis. Soukup became aware that Benson was concerned about certain
business practices at the firm. Soukup, too, was starting to question some of the
firm’s procedures, including the billing of costs and fees. She and Benson shared
their concerns.
In March or April 1993, Benson left LOHH, taking some clients with him.
Relations between Benson and Hafif quickly deteriorated after he left the firm. In
January 1994, Benson telephoned Soukup and told her he had filed a cross-
complaint against Hafif alleging wrongful termination in violation of public policy
in litigation Hafif had brought against him. He said his cross-complaint referred to
two cases that Soukup had worked on while employed at LOHH. Soukup became
extremely upset with him because there were confidentiality agreements in those
cases that, if breached prematurely, could put the settlements in jeopardy. Benson
assured her that he had not disclosed any of the confidential terms of the
settlements. It was not until January 1995 that Soukup became aware of the actual
contents of Benson’s complaint. She was upset to discover that he had named the
clients in two cases and stated there had been settlements. However, to her
knowledge, there were no repercussions from Benson’s disclosure of this
information.
Soukup was served with a deposition subpoena by Hafif in connection with
Benson’s wrongful termination claim. She attended the deposition and answered
5
Hafif’s questions regarding her knowledge of misconduct committed by Hafif or
his son, Gregory Hafif, an attorney employed by LOHH.
3. Actions Against Hafif by His Former Clients
Between June 1993 and February 1994, a number of former clients of Hafif
filed a series of State Bar complaints and lawsuits against him generally alleging
that Hafif had charged the former clients excessive costs and fees. Among these
former clients was Terrie Hutton, whom Hafif had represented in a sex
discrimination case against GTE. In June 1993, represented by a lawyer named
Sasson Sales, Hutton sued Hafif, LOHH and others alleging causes of action for
breach of fiduciary duty, fraud and professional negligence. Sales also filed
actions against Hafif on behalf of Leo Barajas and Max Killingsworth, whom
Hafif had represented in whistleblower suits against Northrup Corporation. Terry
Schielke and Clyde Jones, whom Hafif had represented in wrongful termination
actions against Lockheed Corporation, also sued Hafif. Schielke and Jones were
not represented by Sales, but by another attorney.5
On November 20, 1993, two newspaper articles appeared in the Orange
County Register about Hafif. One article was about the State Bar complaints and
lawsuits. It noted that the complaints and suits were based on allegations that
Hafif had overcharged his former clients, and it reported Benson’s allegation that
5
Hafif successfully demurred to Terrie Hutton’s action. It was dismissed
without leave to amend and sanctions of $25,000 were imposed upon her and
Sales for bringing a frivolous lawsuit. On appeal, however, the judgment was
reversed in part, as was the sanctions order. Barajas and Killingsworth voluntarily
dismissed their actions against Hafif without prejudice because they had been filed
by Sales without their authorization. Hafif prevailed against Schielke and Jones
on their complaint and was awarded $31,196.60 on his cross-complaint.
Represented by Benson, Schielke later filed a second action against LOHH, Hafif
and attorney Ronald Stock for malpractice. In November 2000, following a court
trial, judgment was entered in favor of defendants.
6
he had left the firm for that reason. The article also noted that Hafif vehemently
rejected the allegations. The second article reported the Department of Labor’s
investigation into LOHH’s employee pension plan. The pension plan article
quoted Soukup’s version of her confrontation with Hafif and Hafif’s denial that he
had ever threatened Soukup.
B. The Underlying Action
1. Hafif Files an Action for Malicious Prosecution and Other Claims
Against Soukup and Others
In July 1994, LOHH and Hafif filed an action in Orange County Superior
Court against Soukup, Benson, Hutton, Killingsworth, Barajas, Sales, Schielke
and Jones. The second amended complaint alleged causes of action for fraud,
malicious prosecution, defamation, breach of fiduciary duty, tortious interference
with business relationships and invasion of privacy.
In the fourth cause of action, for breach of fiduciary duty, it was alleged
that Soukup had provided confidential information to Benson that he used to
“make false and misleading allegations that the Hafif Office had intentionally
charged contingent fees in excess of that to which the Hafif firm was entitled to by
retainer agreement; charged excess and fictitious costs to clients to inflate the
income received by the Hafif Office from contingent fee cases; failed to provide
individual cost breakdowns to certain clients; and assessed arbitrary cost figures
against clients’ cases.” The complaint further alleged that Soukup told Benson she
would “wrongfully assert” that Herbert Hafif had assaulted her, a charge she later
“recanted.”
The malicious prosecution claim, against all defendants, alleged that
“Defendants Benson, Killingsworth, Hutton, Schielke, Barajas, and Jones,
pursuant to their conspiracy to defame, extort, and unlawfully hurt the business
and reputation of plaintiffs . . . conspired to file a series of unjustified civil actions,
7
initiated without probable cause, and with malice, and with the specific intent to
harm plaintiffs by initiating and publicizing several specious lawsuits under an
apparent plan of ‘where there is this much smoke, there must be fire.’ ”
The defamation claim, also alleged against all defendants, was based on the
publication of the article in the Orange County Register described above in which
“defendants . . . accused plaintiff of cheating them by overcharging them for costs
incurred in their litigation matters.” No allegations were made with respect to the
second article involving the Department of Labor’s investigation into LOHH’s
employee pension plan.
The claim for tortious interference with business relationships alleged, in
essence, that Benson stole clients from Hafif in part by representing that Hafif
engaged in unethical practices, including charging clients inappropriate fees and
costs. It was further alleged that Killingsworth, Barajas, Schielke, Jones and
Hutton with the assistance of Benson and Soukup “devised a ‘gameplan’ wherein
each sought to personally benefit by presenting a united front against plaintiffs to
demand unjustified reductions in the fees and costs they owed plaintiffs for their
legal services.”6
Within a week of being served with the original complaint, Soukup called
Wylie Aitken, one of Hafif’s lawyers, and told him she should not have been
named in the action because she had no involvement in the claims asserted in the
action nor had she conspired with any of the codefendants. She asked to be
6
Soukup later filed a cross-complaint for declaratory relief against LOHH
and Hafif in the event that the underlying action resulted in suits by former clients
against her based on allegations of misconduct by LOHH and Hafif in cases on
which Soukup had assisted. Hafif demurred to the cross-complaint and the
demurrer was granted without leave to amend, but also without prejudice to
refiling in the event that Soukup was sued by a former client.
8
dismissed from the action. He did not do so. Later, she asked both Aitken and his
son, Darren, why she had been named in the action. They told her they would
have to ask Hafif and would get back to her, but neither did. In 1995, during the
deposition of Sasson Sales, Soukup approached Ronald Stock, another attorney
representing Hafif, and asked him, “What does Mr. Hafif want from me?” Stock
told her, “Well, he doesn’t want your money,” and added, “Mr. Hafif wants to
make sure that you don’t make any trouble for him in the future.”7
In discovery, Soukup obtained a seven-column chart prepared by Hafif
entitled “Benson Related Litigation.” The fifth column described the “Matter
Filed Against LOHH” and the final column was captioned “Matter Defeated by
LOHH.” For Soukup, the “Matter Filed Against LOHH” stated “Claim for
pension plan irregularities,” and the “Matter Defeated by LOHH” stated “Labor
Department audits and investigates 20 years of records and LOHH is given a clean
bill of health. The investigation is concluded.”
Responding to interrogatories propounded by Hafif in connection with the
underlying action, Soukup stated she had had no contact with her codefendants
Killingsworth, Jones, Barajas or Terrie Hutton between July 1992 and May 1994,
which encompassed the time period within which they filed the lawsuits against
Hafif that were the basis of his malicious prosecution cause of action. She stated
further she had had no contact with Terry Schielke after June 1993. She also
stated that her communication with Benson after June 1993 had related either to
the pension plan issue or Benson’s wrongful termination claim against Hafif. In
her interrogatory responses, she denied conspiring with Benson to “extort money
or cases from Mr. Hafif.”
7
Stock denied having made this statement.
9
In an April 1995 deposition of Hafif, Soukup asked him how she had
assisted Hutton in filing her complaint against Hafif. Hafif replied, “I don’t think
you had anything to do with it.” Similarly, when she asked him how she had
assisted Clyde Jones, he testified, “You may not have been involved in the filing
of the complaint. You were involved in the general work of implementing the
attack on me for whatever reason.” When Soukup asked him whether he would
“be producing any witnesses to testify to my assistance in the malicious
prosecution,” Hafif testified, “No.” In the same deposition, while again insisting
that Soukup was part of the conspiracy to “extort money from [him] at the threat
of [his] reputation,” he testified, “I have no idea in her case as to what motivated
her.”
2. Soukup Files a Motion to Strike the Underlying Action as a SLAPP
On August 15, 1996, Soukup filed a motion to strike the underlying action
as a SLAPP. Soukup argued that Hafif brought the action against her in retaliation
for her complaint to the Department of Labor about LOHH’s employee pension
plan, the department’s ensuing investigation, and her ERISA lawsuit. She
contended that pursuing a complaint to an administrative agency and filing a
lawsuit were constitutionally protected activities. She contended further that Hafif
could not demonstrate a probability of prevailing against her on any of his claims
based on a conspiracy theory because the evidence adduced during discovery
demonstrated that she had had minimal or no contact with her codefendants in the
timeframe during which the alleged conspiracy was planned and carried out.
On December 17, 1996, the trial court granted Soukup’s motion to strike.
Hafif appealed. In an unpublished opinion filed on April 27, 2000, the
Court of Appeal affirmed. Preliminarily, the Court of Appeal concluded that the
action fell within the ambit of the anti-SLAPP statute. “Soukup’s allegedly
actionable conduct consisted of her complaints to the Department of Labor.
10
Again, such statements are within the protective purview of the statute.” Next, the
Court of Appeal considered whether Hafif had established a probability of
prevailing. It concluded he had not. “The basis for the complaint’s allegations
against . . . Soukup was the newspaper articles. The articles accurately reflected
that complaints had been made to . . . the Department of Labor and the contents of
those complaints. The only evidence potentially showing merit in Hafif’s claims
came from [Terrie] Hutton’s diaries, which were prepared for transmission to her
lawyer. The trial court properly concluded they were inadmissible. Hafif failed to
meet their [sic] burden of establishing a probability of succeeding in the claims
against . . . Soukup.”8
C. The Instant Action
1. Soukup Files the Instant Action
On April 2, 2001, Soukup filed a complaint against LOHH, Hafif, Cynthia
Hafif, an attorney employed by LOHH, the Law Offices of Wylie A. Aitken,
Wylie A. Aitken, the Law Offices of Ronald C. Stock and Ronald C. Stock in
which she alleged causes of action for abuse of process and malicious prosecution
based on the underlying action. According to Soukup’s complaint: “The
underlying litigation was filed in an effort to discourage or deter SOUKUP from
the exercise of her legal rights as it related to both her communications with the
U.S. Department of Labor, as well as her role as a witness to the questionable
8
The Terrie Hutton “diaries,” which figure prominently in this case, were
hundreds of pages of handwritten and typed notes made by Hutton documenting
her communications with other former clients of Hafif and with her attorney,
Sassoon Sales, in the period prior to the filing of the former clients’ actions against
Hafif. The same Court of Appeal opinion that affirmed the order striking the
underlying action as a SLAPP against Soukup also affirmed the order striking the
underlying action as a SLAPP against Hutton.
11
conduct of HAFIF, his son Greg, and the HAFIF OFFICE in connection with any
pending or anticipated litigation against HAFIF or the HAFIF OFFICE. The
underlying litigation was continued for six years in an effort to punish, annoy,
harass or injure SOUKUP because she had exercised her constitutional rights of
freedom of speech and freedom to petition the government.” Soukup
subsequently amended the complaint to add Gregory Hafif as a defendant.
2. Defendants File Motions to Strike Soukup’s Action as a SLAPP
All defendants except Stock joined Hafif’s motion to strike Soukup’s
complaint as a SLAPP; Stock filed his own motion. Defendants argued that
Soukup’s action arose from the valid exercise of their constitutionally protected
right of petition in filing the underlying action.
Defendants maintained that the evidence demonstrated they had had
probable cause to bring the underlying lawsuit against Soukup on a conspiracy
theory. They cited the following evidence: (1) the lawsuits filed by Hafif’s former
clients to “coerc[e] [LOHH and Hafif] into waiving their right to fees and costs in
the lawsuits they had previously worked on,” and Soukup’s filing of her cross-
complaint in the underlying action; (2) the Court of Appeal’s reference to Terrie
Hutton’s diaries as showing potential merit in the underlying action; (3) the denial
of Terrie Hutton’s motion for summary judgment in the underlying action in
which the trial court found that her diaries provided evidence of her participation
in the alleged conspiracy against Hafif; and; (4) the statement of decision in
Schielke v. LOHH, Herbert Hafif and Ronald Stock, et. al., filed on November 8,
2000 in which the trial court granted judgment for the defendants in Schielke’s
malicious prosecution action based on a finding the underlying action was
supported by probable cause as demonstrated by “the journals or diary of one
Terri[ie] Hutton.”
12
Among the exhibits attached to Hafif’s motion were hundreds of pages of
the Hutton diaries. In Hafif’s declaration in support of the motion to strike, he
cited passages from the diaries as evidence of the alleged conspiracy between the
defendants in the underlying action “to have me waive my fees and costs.” Those
passages documented phone calls between Terrie Hutton, Sasson Sales, Terry
Schielke and Max Killingsworth regarding the filing of State Bar complaints and
actions against Hafif and also asserted that Schielke and Clyde Jones had provided
documents to the Orange Country Register reporter who wrote the article about
Hafif that was the basis of his defamation claim in the underlying action. None of
passages cited by Hafif referred to Soukup.
In her opposition, Soukup argued that defendants should not have the
benefit of the anti-SLAPP statute given that the underlying action had itself been
dismissed as a SLAPP because it was “by definition a lawsuit to chill [her] valid
exercise of constitutional rights of freedom of speech [and] not brought for the
valid redress of grievances and an abuse of judicial process.” “Therefore, there
can be no basis for the [defendants’] special motion to strike in the instant case
since they are not capable of meeting the first prong of the statute which requires a
showing that their underlying action was valid or legitimate.”
Soukup alternatively contended that, even if the anti-SLAPP statute
applied, defendants’ motions should be dismissed because she could demonstrate a
probability of prevailing on the merits. She averred in her declaration that she had
had little or no contact with her codefendants during the timeframe in which Hafif
had alleged in the underlying action she had conspired with them. Barajas and
Killingsworth filed declarations stating that they had never met Soukup prior to
the filing of the underlying action. Terrie Hutton filed a declaration that stated the
only time she had met Soukup prior to the filing of the underlying action was
when Soukup screened her as a client for Hafif. All three denied that they had
13
conspired with Soukup against Hafif or that she had encouraged them to file the
lawsuits against him that were the basis of his malicious prosecution claim.
In their reply, defendants argued: “In the present case, it is undisputed that
defendants’ acts in furtherance of their constitutional right of petition consisted of
nothing more than the filing and maintenance of the underlying civil action out of
which Soukup’s malicious prosecution and abuse of process claims directly arise
. . . . Although Hafif’s claims were found to be potentially without merit, that
does not mean that Hafif has done anything illegal or that those claims were
brought without probable cause.”
3. Stock’s Motion to Strike Soukup’s Action
Stock filed his own motion to strike Soukup’s claim under the anti-SLAPP
statute. In addition to repeating arguments advanced by Hafif, Stock argued that,
as to him, the motion should be granted because he had “no role or participation in
the decision to file, or the filing of the underlying action” nor had Soukup shown
that “Stock had knowledge that the factual allegations of the underlying complaint
were false.” In her opposition, Soukup argued that the filing and prosecution of
the underlying action was not a valid exercise of protected rights for purposes of
the anti-SLAPP action and that Stock’s participation in the prosecution of the
underlying action was more significant than he admitted.
On July 27, 2001, the trial court denied Hafif’s motion to strike Soukup’s
complaint and, on September 4, 2001, also denied Stock’s motion.
Following denial of the motions to dismiss, the trial court sustained a
demurrer to the cause of action for abuse of process without leave to amend.
14
4. Proceedings in the Court of Appeal and This Court
Hafif and his fellow defendants appealed the denial of their motion to strike
Soukup’s actions. Stock separately appealed. The Court of Appeal affirmed the
denial of Hafif’s motion to strike. In a separate opinion, the Court of Appeal also
affirmed the denial of Stock’s motion to strike. Hafif and Stock then sought
review in this court. We granted their petitions and held their cases for Jarrow
Formulas, Inc. v. LaMarche Industries, Inc., supra, 31 Cal.4th 728, which was
then pending before this court. Following our decision in Jarrow and Navellier v.
Sletten (2002) 29 Cal.4th 92, we dismissed review and transferred the cases back
to the Court of Appeal to reconsider its decisions in light of Jarrow and Navellier.
The Court of Appeal summarily reversed its earlier rulings and held that the
motions to strike should have been granted. Soukup petitioned for review and we
granted her petition.
II. DISCUSSION
A. Are Defendants Barred From Using the Anti-SLAPP Statute to Strike
Soukup’s
Complaint?
1. Introduction
Section 425.16 provides in relevant part that: “A cause of action against a
person arising from any act of that person in furtherance of the person’s right of
petition or free speech under the United States or California Constitution in
connection with a public issue shall be subject to a special motion to strike, unless
the court determines that the plaintiff has established that there is a probability that
the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) “The Legislature
enacted section 425.16 to prevent and deter ‘lawsuits brought primarily to chill the
valid exercise of the constitutional rights of freedom of speech and petition for the
redress of grievances.’ (§ 425.16, subd. (a).) Because these meritless lawsuits
seek to ‘deplete the defendant’s energy’ and drain ‘his or her resources [citation],
15
the Legislature sought to prevent SLAPPs by ending them early and without great
cost to the SLAPP target.’ [Citation.] Section 425.16 therefore establishes a
procedure where the trial court evaluates the merits of the lawsuit using a
summary-judgment-like procedure at an early stage of the litigation.” (Varian
Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192; Jarrow Formulas,
Inc. v. LaMarche, supra, 31 Cal.4th at p. 737 [section 425.16 “is a procedural
device for screening out meritless claims”].)
“Section 425.16 posits . . . a two-step process for determining whether an
action is a SLAPP. First, the court decides whether the defendant has made a
threshold showing that the challenged cause of action is one arising from protected
activity. . . . If the court finds that such a showing has been made, it must then
determine whether the plaintiff has demonstrated a probability of prevailing on the
claim.” (Navellier v. Sletten, supra, 29 Cal.4th at p. 88.) “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.” (Id. at p. 89.)
The Legislature’s purpose in enacting the anti-SLAPP statute is set forth in
its findings and declarations. “The Legislature finds and declares that it is in the
public interest to encourage continued participation in matters of public
significance, and that this participation should not be chilled through abuse of the
judicial process.” (§ 425.16, subd. (a).) Furthermore, to accomplish this purpose
the Legislature has directed that the statute “be construed broadly.” (Ibid.) To this
end, when construing the anti-SLAPP statute, “[w]here possible, ‘we follow the
Legislature’s intent, as exhibited by the plain meaning of the actual words of the
law . . . .’ [Citation.]” (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at
p. 733, quoting California Teachers Assn. v. Governing Bd. Of Rialto Unified
School Dist. (1997) 14 Cal.4th 627, 632.) Where this principle is applied,
16
recourse to extrinsic material like legislative history is unnecessary but, in our
prior cases interpreting section 425.16, we have more than once consulted that
history and found in it material that has buttressed our construction of the statutory
language. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th
1106, 1120; Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p.
61; Jarrow, supra, 31 Cal.4th at p. 736.) We apply these principles as we take up
the question on which we granted review in this case involving the latest twist in
anti-SLAPP law — the SLAPPback.
The SLAPPback phenomenon is concisely explained in the legislative
material accompanying Assembly Bill No. 1158, the bill ultimately enacted by the
Legislature as section 425.18.9 A SLAPPback suit is an action, typically for
malicious prosecution “filed by the target of a SLAPP suit against the SLAPP filer
after the dismissal of the SLAPP suit as a result of the target’s appropriate use of
the SLAPP statute.” (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 1158
(2005-2006 Reg. Sess.) as introduced Feb. 22, 2005, p. 1.) The purpose of a
9
Defendants request that we take judicial notice of the legislative history
surrounding Assembly Bill No. 1158. (Martin v. Szeto (2004) 32 Cal.4th 445,
452, fn. 9.) Soukup objects to the extent that some of the legislative history
reflects the views of individual legislators or advocates of the legislation rather
than the Legislature as a whole. (See Kaufman & Broad Companies, Inc. v.
Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 38-39.) The legislative
history in this case is relatively brief and our citation to it is limited to various
versions of the legislation and committee reports, all of which are indisputably
proper subjects of judicial notice. (Quelimane Co. v. Stewart Title Guaranty Co.
(1998) 19 Cal.4th 26, 45, fn. 9.) Therefore, we grant defendants’ request for
judicial notice of the legislative history material. Defendants also request that we
take judicial notice of materials in the case of Hutton v. Hafif (May 11, 2004,
B162572) (nonpub. opn.) review denied, July 28, 2004, S125728, including the
Court of Appeal’s opinion in that case and in proceedings that followed our denial
of review. These materials are not relevant to any issue in this case and the
request is denied.
17
SLAPPback is to seek compensation for damages beyond the attorney’s fees and
costs awarded to the defendant who prevails on the special motion to strike under
the anti-SLAPP statute. (See § 425.16, subd. (b)(3).) “SLAPP victims . . .
commonly experience stress-related health issues, strained family relationships,
and financial distress or even insolvency. The only way a SLAPP victim can
recover for these damages is to pursue a legal claim against the person or entity
that filed the original SLAPP.” (Assem. Com. on Judiciary, Rep. on Assem. Bill
No. 1158 (2005-2006 Reg. Sess.) as introduced Feb. 22, 2005, p. 4.)
The filing of a SLAPPback does not end the roundelay of special motions
to strike under the anti-SLAPP statute. The SLAPPback defendant may in turn
file such a motion arguing, as do defendants here, that the filing and maintenance
of the underlying action that is the basis of the SLAPPback was itself activity
protected by the anti-SLAPP statute. (Briggs v. Eden Council for Hope &
Opportunity, supra, 19 Cal.4th at p. 1115 [“ ‘ “[t]he constitutional right to petition
. . . includes the basic act of filing litigation or otherwise seeking administrative
action.” ’ ”].) We granted review to examine whether permitting such defendants
to avail themselves of the anti-SLAPP statute is consistent with the legislative
intent behind section 425.16. While the case was pending before us, however, the
Legislature itself addressed the issue by enacting section 425.18, to which we now
turn.
2. Section 425.18
a. Applicability of Section 425.18 to Pending Cases
Before we substantively discuss section 425.18, we address the preliminary
question of whether it applies to pending cases, like the one before us, that
originated prior to section 425.18’s effective date. The anti-SLAPP statute is a
procedural statute, the purpose of which is to screen out meritless claims. (Jarrow
Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 737.) It is well settled that
18
“applying changed procedural statutes to the conduct of existing litigation, even
though the litigation involves an underlying dispute that arose from conduct
occurring before the effective date of the new statute, involves no improper
retrospective application because the statute addresses conduct in the future.”
(Brenton v. Metabolife Internat., Inc. (2004) 116 Cal.App.4th 679, 689; People v.
Tapia (1953) 53 Cal.2d 282, 288-291; Aetna Cas. & Surety Co. v. Ind. Acc. Com.
(1947) 30 Cal.3d 388, 394.) Both we and the Court of Appeal have applied this
principle to hold that amendments to the anti-SLAPP statute apply to cases
pending before the effective date of the amendments. (Briggs v. Eden Council for
Hope & Opportunity, supra, 19 Cal.4th at p. 1119, fn. 7 [Language added to
section 425.16, subdivision (a) requiring broad construction of the statute applies
to pending cases because section 426.15 “is a procedural statute that properly is
applied prospectively to an existing cause of action”]; Brenton v. Metabolife
Internat., Inc., supra, 116 Cal.App.4th at pp. 687-691 [Enactment of section
425.17 exempting certain claims from the ambit of the anti-SLAPP statute applies
to pending cases]; accord, Metcalf v. U-Haul International (2004) 118
Cal.App.4th 1261, 1265-1266; Physicians Com. for Responsible Medicine v.
Tyson Foods (2004) 119 Cal.App.4th 120, 125-130.)
Section 425.18 creates different procedures for SLAPPbacks than those that
ordinarily apply to motions to strike under the anti-SLAPP statute and also, like
section 425.17, “amend[s] section 425.16 to except certain claims from
applicability of the statutorily conferred remedy of the screening mechanism
provided by section 425.16” (Brenton v. Metabolife Internat., Inc., supra, 116
Cal.App.4th at pp. 689-690.) In neither event does section 425.18 “impose new,
additional or different liabilities based on past conduct or deprive [defendants] of
any substantive defense to the action.” (Branton v. Metabolife Internat., Inc.,
19
supra, 116 Cal.App.4th at p. 690.) We conclude, therefore, that section 425.18
applies to the case before us.10
b. Substantive Provisions of Section 425.18
Section 425.18 defines a SLAPPback as “any cause of action for malicious
prosecution or abuse of process arising from the filing or maintenance of a prior
cause of action that has been dismissed pursuant to a special motion to strike under
Section 425.16.” (§ 425.18, subd. (b)(1).) In its findings and declarations, the
Legislature states “that a SLAPPback cause of action should be treated differently,
as provided in this section, from an ordinary malicious prosecution action because
a SLAPPback is consistent with the Legislature’s intent to protect the valid
exercise of the constitutional rights of free speech and petition by its deterrent
effect on SLAPP (strategic lawsuit against public participation) litigation and by
its restoration of public confidence in participatory democracy.” (§ 425.18, subd.
(a).)
Section 425.18 treats SLAPPbacks differently from ordinary malicious
prosecution actions in two ways. First, it makes inapplicable to special motions to
strike a SLAPPback certain procedures that would normally apply to such motions
and sets forth different procedures. Thus, the statute states that the “provisions of
subdivisions (c) [prevailing defendants entitled to attorney’s fees and costs], (f)
10
The parties do not contend to the contrary, except for Stock who purports to
find in the legislative history of Assembly Bill No. 1158 an indication that the
Legislature considered, but rejected, prospective application of the section by
deleting language that stated an intent “to apply this amendment to cases pending
at the time this act is adopted.” This language, however, was in the context of an
amendment to section 425.16, subdivision (f), not to section 425.18. (Assem.
Com. on Judiciary, Rep. on Assem. Bill No. 1158 (2005-2006 Reg. Sess.) as
introduced, Feb. 22, 2005, p. 7.) Therefore, it has no bearing on whether section
425.18 applies to pending cases.
20
[motion to strike ordinarily to be filed within 60 days of the service of complaint],
(g) [discovery ordinarily stayed upon filing of notice of motion to strike], and (i)
of Section 425.16 [providing for appeal of order granting or denying special
motion], and paragraph (13) of subdivision (a) of Section 904.1 [appeal of order
granting or denying special motion to strike], shall not apply to a special motion to
strike a SLAPPback.” (§ 425.18, subd. (c).) Instead, section 425.18, subdivision
(d) allows a motion to strike a SLAPPback to be brought within 120 days of the
service of the complaint or, subject to the court’s discretion, as long as six months
after the service of the complaint or, “in extraordinary cases” “at any later time.”
(§ 425.18, subd. (d)(1)(A)-(C).) Subdivision (e) permits the plaintiff opposing the
special motion to strike to file an ex parte application for a continuance to obtain
discovery. (§ 425.18, subd. (e).) Subdivision (f) allows the plaintiff to recover
costs and attorney’s fees if the court finds that the motion to strike “is frivolous or
solely intended to cause unnecessary delay,” but makes no provision for such costs
and fees to be awarded to the prevailing defendants. (§ 425.18, subd. (f).)
Subdivision (g) limits appellate review of the denial of a motion to strike, in whole
or part, to review by peremptory writ. (§ 425.18, subd. (g).)
The import of these provisions is to stack the procedural deck in favor of
the SLAPPback plaintiff confronted with a special motion to strike. They do so
by providing the plaintiff with both a longer timeframe, and the means with which,
to conduct discovery that might yield evidence to resist the motion to strike,
exempting the plaintiff from fees and costs even if the plaintiff’s SLAPPback
action is stricken and minimizing the delays and expense the plaintiff might
otherwise incur while the case is on appeal by limiting the unsuccessful defendant
to writ review. (See Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at
p. 195 [because appeal of order denying special motion to strike stays all further
21
trial court proceedings “some anti-SLAPP appeals will undoubtedly delay
litigation even though the appeal is frivolous or insubstantial”].)
The second way in which section 425.18 treats SLAPPbacks differently
from ordinary malicious prosecution actions is to provide a limited exemption for
SLAPPbacks from the anti-SLAPP statute in subdivision (h). That subdivision
provides: “A special motion to strike may not be filed against a SLAPPback by a
party whose filing or maintenance of the prior cause of action from which the
SLAPPback arises was illegal as a matter of law.” (§ 425.18, subd. (h).) It is the
applicability of this provision to the instant case that concerns us and it is that
question we now address.
3. Applicability of Subdivision (h)
Soukup’s malicious prosecution action fits the definition of a SLAPPback
set forth in section 425.18.11 She contends that the filing and maintenance of the
underlying action violated state and federal labor laws, specifically Labor Code
section 1102.5 and 29 United States Code section 1140 and, therefore, subdivision
(h) bars defendants from seeking to strike her action as a SLAPP. Since a motion
to strike a SLAPPback is prohibited only if the “prior cause of action from which
the SLAPPback arises was illegal as a matter of law,” (§ 425.18, subd. (h)), we
must determine the meaning of the phrase “illegal as a matter of law.” As in our
prior anti-SLAPP jurisprudence, we begin by construing the statute “strictly by its
terms,” to ascertain the “ ‘Legislature’s intent, as exhibited by the plain meaning
11
Indeed, the legislative history reveals that early versions of Assembly Bill
No. 1158 specifically stated that one object of the SLAPPback amendments to
section 425.16 was to overrule the Court of Appeal’s opinion in Soukup v. Stock;
this language did not survive into the final version of section 425.18. (Assem.
Com. on Judiciary, Rep. on Assem. Bill No. 1158 (2005-2006 Reg. Sess.) as
introduced Feb. 22, 2005, p. 7.)
22
of the actual words of the law.’ ” (Equilon Enterprises v. Consumer Cause, Inc.,
supra, 29 Cal.4th at p. 59.)
An illegal act is an act “[f]orbidden by law.” (Black’s Law Dict. (7th ed.
1999), p. 750.)12 By specifying that only those defendants whose filing or
maintenance of the underlying action was illegal as a matter of law are barred
from bringing a special motion to strike a SLAPPback, it is clear that the
Legislature intended to require something more than that the underlying action
was dismissed as a SLAPP before section 425.18, subdivision (h) applies. Had the
Legislature intended to create a categorical rule exempting all SLAPPbacks from
the anti-SLAPP statute, it could have done so. (Jarrow Formulas, Inc. v.
LaMarche, supra, 31 Cal.4th at p. 735 [“The Legislature clearly knows how to
create an exemption from the anti-SLAPP statue when it wishes to do so”].)
Instead, it created the narrower exemption set forth in subdivision (h).
Our conclusion is buttressed by the relevant legislative history surrounding
Assembly Bill No. 1158, which shows the Legislature explicitly considered and
rejected a categorical rule exempting all SLAPPbacks from section 425.16. The
Senate Committee on the Judiciary report on Assembly Bill No. 1158 noted that
“[a]s passed by the Assembly, AB 1158 proposed to make the anti-SLAPP motion
inapplicable in any SLAPPback action (any malicious prosecution claim or any
other cause of action arising from the filing or maintenance of a prior cause of
action that has been dismissed pursuant to the granting of an anti-SLAPP
motion.)” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1158 (2005-2006
12
Stock asserts that the law in question must be a criminal statute but he fails
to provide any support for his premise that “illegal” refers only to criminal acts or
that the Legislature, in enacting section 425.18, intended to refer only to criminal
violations.
23
Reg. Sess.) as amended Apr. 25, 2005, p. 13.) But, as the committee report
explained, a number of concerns led to the rejection of a categorical exemption.
First, referring to prior court decisions that had followed the Legislature’s mandate
to broadly construe the anti-SLAPP statute, the report suggested that continued
broad construction of the statute might “result in cases of first impression where
the ‘little-guy’ plaintiff was truly not engaging in SLAPP litigation but is
nonetheless found to be a SLAPPer. That person would be precluded from using
the anti-SLAPP law to defend himself or herself against the follow-up SLAPPback
SLAPP suit. . . . [¶] . . . [Thus] a categorical exemption seemed fraught with the
risk of unintended consequences. Can every future SLAPPback claim be
presumed to not be a SLAPP case itself?” (Id., p.15.) Second, the report
expressed the concern that a categorical exemption would abrogate our holding in
Jarrow that malicious prosecution actions are not exempt from scrutiny under the
anti-SLAPP law. (Ibid.) It was evidently in light of these concerns that the
Legislature crafted the narrower exemption based on the illegality of the
underlying action.
The Legislature further narrowed the exemption in section 425.18,
subdivision (h) by requiring that the illegality be established “as a matter of law.”
In adding this proviso, the Legislature appears to have had in mind decisions by
the Court of Appeal that have held that the anti-SLAPP statute is not available to a
defendant who claims that the plaintiff’s cause of action arises from assertedly
protected activity when that activity is illegal as a matter of law and, for that
reason, not protected by the First Amendment. (See, e.g., Paul for Council v.
24
Hanyecz (2001) 85 Cal.App.4th 1356 (Paul), disapproved on other grounds in
Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.)13
In Paul, the plaintiff sued the defendants, alleging that they had interfered
with his candidacy for city council by making illegal contributions to one of his
opponents, in violation of the Political Reform Act of 1974 (Gov. Code, § 81000
et seq.). The defendants moved to strike the suit under the anti-SLAPP statute on
the grounds that the campaign contributions were in furtherance of their free
speech rights and thus protected by the statute. Their moving papers, however,
“show[ed] that they did in fact violate the Political Reform Act when they
laundered campaign contributions to persons running for local and state offices.”
(Paul, supra, 85 Cal.App.4th at p. 1361.) In reversing the trial court’s order
granting the motion to strike, the Court of Appeal held that because the
“defendants have effectively conceded the illegal nature of their election campaign
finance activities for which they claim constitutional protection . . . as a matter of
law . . . such activities [were] not a valid exercise of constitutional rights as
contemplated by section 425.16.” (Id. at p. 1367.) The court emphasized that
“there was no dispute on the point” but “had there been a factual dispute as to the
legality of defendants’ actions, then we could not so easily have disposed of
defendants’ motion.” (Ibid.)
In Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102
Cal.App.4th 449, the plaintiffs, a group organized to support the reelection of
former Governor Davis, brought an action against defendant taxpayer group
alleging that, by producing and running a television advertisement critical of the
Governor, the taxpayer group had violated certain provisions of the Political
13
We address the viability of this exception in the companion to this case,
Flatley v. Mauro (July 27, 2006, ___ Cal.4th ____, S128429).
25
Reform Act. The taxpayer group filed a special motion to strike the complaint as a
SLAPP. The trial court denied the motion. On appeal, the plaintiffs argued, as
had the plaintiff in Paul, that the defendant was not entitled to use the anti-SLAPP
statute because the conduct for which it claimed constitutional protection was
illegal. The Court of Appeal distinguished Paul. “Here in contrast, appellant
neither has conceded nor does the evidence conclusively establish the illegality of
its communications made during the course of debate on political issues.
[Citations.] Appellant claims its advertisement constitutes protected speech that
cannot be regulated by the Political Reform Act, and consequently no violation of
law occurred.” (Id. at p. 459.) Because the issue of the legality of the taxpayer
group’s conduct was disputed, the Court of Appeal found that “the threshold
element in a section 425.16 inquiry has been established” and the “asserted
violation of the Political Reform Act . . . is an issue we must examine in the
context of the respondent’s burden to construct a prima facie showing of the
merits of its case.” (Id. at p. 460; see also Chavez v. Mendoza (2001) 94
Cal.App.4th 1083, 1090 [the Paul exception applies “where the defendant
indisputably concedes the claim arose from illegal or constitutionally unprotected
activity”]; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 910-911 [“In short,
conduct that would otherwise come within the scope of the anti-SLAPP statute
does not lose its coverage . . . simply because it is alleged to have been unlawful
or unethical”].)
Under these decisions, if a defendant’s assertedly protected constitutional
activity is alleged to have been illegal and, therefore, outside the ambit of the anti-
SLAPP statute, the illegality must be established as a matter of law either through
the defendant’s concession or because the illegality is conclusively established by
the evidence presented in connection with the motion to strike. Although the
legislative history surrounding Assembly Bill No. 1158 does not expressly refer to
26
these cases, nonetheless, a Senate Committee on the Judiciary analysis notes that
an early version of the bill would have incorporated “indisputably illegal
behavior” as the standard by which to evaluate whether the filing and maintenance
of the underlying action was illegal as a matter of law. (Sen. Com. on Judiciary,
Analysis of Assem. Bill No. 1158 (2005-2006 Reg. Sess.) as amended Apr. 25,
2005, p. 10.) In language echoing the Paul decision, the analysis states that “if
there is a genuine issue of material fact that turns on the credibility of [a] witness
or on proper inferences to be drawn from indisputable facts, then the matter is not
indisputable.” While the final version of section 425.18, subdivision (h)
substituted the phrase “illegal as a matter of law” for “indisputably illegal
behavior,” there is no indication in the legislative history that a different meaning
was intended.14
In summary, section 425.18, subdivision (h) provides a narrow exception to
the rule that malicious prosecution actions are subject to scrutiny under the anti-
SLAPP statute which applies only if (1) the malicious prosecution action is a
SLAPPback and (2) the filing and maintenance of the underlying action was
illegal as a matter of law. The burden of establishing that the underlying action
was illegal as a matter of law should be shouldered by the plaintiff in such cases.
This is because the Legislature’s decision not to create a categorical exemption for
SLAPPbacks demonstrates a legislative preference that the anti-SLAPP statute
14
Further support for our conclusion that the Legislature’s adoption of the
phrase “illegal as a matter of law” referred to the Paul decision comes in the form
of a subsequent Senate Committee on the Judiciary analysis of Assembly Bill No.
1158 that explains that this concept was drawn in part from the amicus curiae brief
filed by the Attorney General in Flatley v. Mauro (July 27, 2006, ___ Cal.4th
____, S128429) wherein the Attorney General argues that the Paul exception is
consistent with the Legislature’s intent in enacting section 425.16.
27
operate in the ordinary fashion in most SLAPPback cases, subject, of course, to
the special procedural rules applicable to all motions to strike a SLAPPback. In
the ordinary SLAPP case, the defendant’s initial burden in invoking the anti-
SLAPP statute is to make “ ‘a threshold showing that the challenged cause of
action is one arising from protected activity.’ ” (Jarrow Formulas, Inc. v.
LaMarche, supra, 31 Cal.4th at p. 733.) There is no further requirement that the
defendant initially demonstrate his exercise of constitutional rights of speech or
petition was valid as a matter of law. (Navellier v. Sletten, supra, 29 Cal.4th at pp.
94-95.) Consistent with these principles, a defendant who invokes the anti-
SLAPP statute should not be required to bear the additional burden of
demonstrating in the first instance that the filing and maintenance of the
underlying action was not illegal as a matter of law. Moreover, placing this
burden on the defendant would be impractical and inefficient because it would
require the defendant to identify and address every conceivable statute that might
have had some bearing on the underlying action and then prove a negative – that
the underlying action did not violate any of these laws.
Accordingly, once the defendant has made the required threshold showing
that the challenged action arises from assertedly protected activity, the plaintiff
may counter by demonstrating that the underlying action was illegal as a matter of
law because either the defendant concedes the illegality of the assertedly protected
activity or the illegality is conclusively established by the evidence presented in
connection with the motion to strike. In doing so, the plaintiff must identify with
particularity the statute or statutes violated by the filing and maintenance of the
underlying action. (See Paul, supra, 85 Cal.App.4th at pp. 1360-1361.) This
requirement of identifying a specific statute, violation of which the plaintiff
contends is illegal as a matter of law, is consistent with the narrow nature of the
exemption set forth in section 425.18, subdivision (h) because it prevents a
28
plaintiff from advancing a generalized claim that a defendant’s conduct was illegal
and therefore subject to the exemption. In this same vein, the requirement of
specificity provides notice to both the defendant and the court about the particular
statute or statutes the defendant is alleged to have violated as a matter of law so as
to allow the defendant to intelligibly respond to, and the court to assess, the claim.
Additionally, as part of the plaintiff’s burden of demonstrating illegality as a
matter of law, the plaintiff must show the specific manner in which the statute or
statutes were violated with reference to their elements. A generalized assertion
that a particular statute was violated by the filing or maintenance of the underlying
action without a particularized showing of the violation will be insufficient to
demonstrate illegality as a matter of law.
In light of this analysis of section 425.18, subdivision (h), we turn to
Soukup’s claim that defendants’ filing and maintenance of the underlying action
was illegal as a matter of law because it violated Labor Code section 1102.5,
subdivision (b) and 29 United States Code section 1140. To reiterate our earlier
discussion with reference to Soukup’s specific claim, she bears the burden of
making a particularized showing that defendants’ initiation and maintenance of the
underlying action violated these statutes as a matter of law. For the reasons we set
forth below, we conclude that she has failed to carry this burden.
Labor Code section 1102.5, subdivision (b) provides: “An employer may
not retaliate against an employee for disclosing information to a government or
law enforcement agency, where the employee has reasonable cause to believe that
the information discloses a violation of state or federal statute, or a violation or
noncompliance with a state or federal rule or regulation.”
Labor Code section 1102.5 is a whistleblower statute, the purpose of which
is to “encourag[e] workplace whistle-blowers to report unlawful acts without
fearing retaliation.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77.)
29
“ ‘ “To establish a prima facie case of retaliation, a plaintiff must show that she
engaged in protected activity, that she was thereafter subjected to adverse
employment action by her employer, and there was a causal link between the
two.” ’ ” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th
52, 69.)
Thus, it appears that a prerequisite to asserting a violation of Labor Code
section 1102.5 is the existence of an employer-employee relationship at the time
the allegedly retaliatory action occurred. In this case, however, as Soukup’s
counsel conceded at argument, Soukup was not an employee of LOHH at the time
she complained to the Department of Labor about LOHH’s pension plan
distribution nor when the underlying action was filed. Accordingly, she fails to
demonstrate how defendants’ filing and maintenance of the underlying action,
even if it was in some broad sense retaliatory, violated the specific provisions of
Labor Code section 1102.5, much less that the statute rendered defendants’
conduct illegal as a matter of law.
29 United States Code section 1140 states in pertinent part that it is
“unlawful for any person to discharge, fine, suspend, expel, discipline, or
discriminate against a participant or beneficiary” of an employee benefit plan
either for “exercising any right to which he is entitled” or “because he has given
information or has testified or is about to testify in any inquiry or proceeding”
relating to such plans.15 “The latter part of [section 1140] is a whistleblower
provision. . . designed to encourage individuals with knowledge of potential
ERISA violations to share information in order that such violations may be
redressed. To this end, [section1140] prohibits employers from retaliating against
15
This section is part of the Employment Retirement Income Security
Program (ERISA) statute. (29 U.S.C. 1001 et. seq.)
30
those who provide information or testimony in ‘any inquiry or proceeding related
to [ERISA].’ ” (Klein v. Banknorth Group, Inc. (D.Vt. 1997) 977 F.Supp. 302,
304; Teumer v. General Motors Corp. (7th Cir. 1994) 34 F.3d 542, 550 [“A
plaintiff seeking relief under [section 1140] must establish that the complained of
action affecting his employment situation was taken by his employer with the
specific intent of interfering with his benefit rights”].)
Accordingly, it appears that a claim that this statute was violated can be
made either by an employee-participant of an employee-benefit plan or a
beneficiary of such plan. For the same reason that Soukup is unable to show that
defendants’ filing of the underlying action violated Labor Code section 1102.5 –
the absence of an employer-employee relationship at the time the allegedly
retaliatory action was taken – she is unable to show a violation of the federal
statute based on her status as an employee of LOHH. Moreover, Soukup does not
contend, much less demonstrate, that she can assert a violation of the federal
statute as a beneficiary of the pension plan. Here, too, then, she fails to show that
defendants’ filing and maintenance of the underlying action violated the federal
statute as to her, much less that defendants’ conduct was illegal as a matter of law
for purposes of 29 United States Code section 1140.16
Soukup alternatively argues that, even if the underlying action was not
illegal as a matter of law, it was nonetheless a sham suit and on this ground
defendants should be barred from recourse to the anti-SLAPP statute. Soukup
relies on United States Supreme Court decisions that, in various contexts, have
16
Soukup also argues that the illegality of the underlying action is established
by the finding of the Court of Appeal that her complaint to the Department of
Labor was the basis for the underlying action when it affirmed the dismissal of the
action as a SLAPP. This finding, however, is not the equivalent of a finding that
the underlying action was illegal
31
concluded that litigation undertaken without a reasonable basis, but merely to
harass or hinder another party is sham litigation undeserving of the First
Amendment protection that ordinarily immunizes petitioning activity.
(Professional Real Estate Investors v. Columbia Pictures Industries, Inc. (1993)
508 U.S. 49, 60-61; Bill Johnson’s Restaurants, Inc. v. N.L.R.B. (1983) 461 U.S.
731, 743 (Bill Johnson’s Restaurants).) This doctrine derives from decisions
reached in the context of antitrust law and is often referred to as the Noerr-
Pennington doctrine. (United Mine Workers v. Pennington (1965) 381 U.S. 657,
670; Eastern Railroad Presidents’ Conference v. Noerr Motor Freight, Inc. (1961)
365 U.S. 127, 144.) “The Noerr-Pennington doctrine, as refined and explained in
Real Estate Investors, has two prongs. First, . . . the challenged action must have
been undertaken with an improper motive. That is, it must have been done not
with the hope of securing a favorable governmental result, but solely to harass and
hinder another party. The other prong of the doctrine is that the challenged action
must have been objectively baseless. Absent such a patent lack of merit, an action
protected under the First Amendment by the right of petition cannot be the basis
for litigation.” (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 22.)
Invoking this doctrine, Soukup cites language from the Bill Johnson
decision in which the Supreme Court stated that “baseless litigation is not
immunized by the First Amendment right to petition.” (Bill Johnson’s
Restaurants, supra, 461 U.S. at p. 743). Equating baselessness with lack of
probable cause (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811,
820), she contends that the absence of probable cause to support the underlying
action renders it sham litigation unprotected by the First Amendment. Therefore,
she reasons, defendants were not entitled to avail themselves of the anti-SLAPP
statute because the purpose of that statute is to promote the exercise of protected
speech and petition rights.
32
We disagree. First, Bill Johnson’s Restaurants is not directly controlling,
nor does Soukup argue that it is, because that case involved the National Labor
Relations Act (NRLA) rather than a statute in any way analogous to the anti-
SLAPP statute. In Bill Johnson’s Restaurants, the Supreme Court held that it is an
“enjoinable unfair labor practice to prosecute a baseless lawsuit with the intent of
retaliating against an employee for the exercise of rights” protected by the NRLA
relating to union organizing. (Bill Johnson’s Restaurants, Inc. v. NLRB, supra,
461 U.S. at p. 744.) Second, the sham suit exemption urged upon us by Soukup
would be significantly broader than that which the Legislature created in section
425.18, subdivision (h). Third, the legislative history surrounding the enactment
of section 425.18, subdivision (h) demonstrates that the Legislature was aware of
the principle articulated in the Bill Johnson’s Restaurants decision to which
Soukup refers and adopted it only to the extent it supported the narrow exemption
from the anti-SLAPP statute for SLAPPbacks set forth in subdivision (h).
In a comment addressing subdivision (h) of section 425.18, the Senate
Committee on the Judiciary report states: “In Bill Johnson’s Restaurants, Inc. v.
National Labor Relations Board, 461 U.S. 731 (1983), the U.S. Supreme Court
held that ‘baseless litigation is not immunized by the First Amendment right to
petition.’ [¶] AB 1158’s proposed Section 425.18(h) . . . adopts this principle in
the SLAPPback context and provides that ‘a special motion to strike may not be
filed against a SLAPPback by a party whose filing or maintenance of the prior
cause of action from which the SLAPPback arises was illegal as a matter of
law.’. . . [¶] Thus, where a person whose prior SLAPP lawsuit was illegal as a
matter of law, as shown by being thrown out on a special motion to strike, and the
SLAPP victim files a subsequent malicious prosecution action, that bad actor
cannot use the anti-SLAPP law to defend against the lawsuit or to vex and harass
the SLAPP victim.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 1158
33
(2005-2006 Reg. Sess.) as amended Aug. 15, 2005, pp. 11-12.) Thus, the
Legislature concluded that, for purposes of the anti-SLAPP statute, underlying
actions illegal as a matter of law are a species of “baseless litigation” undeserving
of First Amendment protection, as that general principle was articulated in the Bill
Johnson’s Restaurants decision, but it declined to apply that principle to fashion
the kind of categorical exemption for SLAPPbacks that Soukup, citing the same
principle, urges upon us. Where the Legislature has spoken we are not at liberty to
create a broader exception for sham litigation.
We therefore conclude that Soukup has failed to show that the filing and
maintenance of the underlying action was illegal as a matter of law for purposes of
section 425.18, subdivision (h). Therefore, defendants are not barred from
proceeding with their motions to strike Soukup’s action under the anti-SLAPP
statute. As such, the motions are subject to the usual analysis under which
defendants are required to make a threshold showing that Soukup’s malicious
prosecution claim arises from protected activity. “By definition, a malicious
prosecution suit alleges that the defendant committed a tort by filing a lawsuit.”
(Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 735.) The filing of
lawsuits is an aspect of the First Amendment right of petition. (Id., at p. 736, fn.
5.) Accordingly, defendants have fulfilled the required threshold showing. This
does not end our analysis, however. “If the court finds such a showing has been
made, it then determines whether the plaintiff has demonstrated a probability of
prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc., supra, 29
Cal.4th at p. 67.) The Court of Appeal concluded that Soukup had not done so.
Soukup contends that the court erred. We agree and on this ground reverse the
Court of Appeal.
34
B. Has Soukup Shown a Probability of Prevailing on Her Malicious
Prosecution
Claim?
To establish a probability of prevailing, the plaintiff “must demonstrate that
the complaint is both legally sufficient and supported by a sufficient prima facie
showing of facts to sustain a favorable judgment if the evidence submitted by the
plaintiff is credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548 [46
Cal.Rptr.2d 880]; accord, Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 274
[105 Cal.Rptr. 674].) For purposes of this inquiry, “the trial court considers the
pleadings and evidentiary submissions of both the plaintiff and the defendant
(§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or
comparative probative strength of competing evidence, it should grant the motion
if, as a matter of law, the defendant’s evidence supporting the motion defeats the
plaintiff’s attempt to establish evidentiary support for the claim.” (Wilson v.
Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821.) In making this
assessment it is “the court’s responsibility . . . to accept as true the evidence
favorable to the plaintiff . . . .” (HMS Capital, Inc. v. Lawyers Title Co. (2004)
118 Cal.App.4th 204, 212.) The plaintiff need only establish that his or her claim
has “minimal merit” (Navellier v. Sletten, supra, 29 Cal.4th at p. 89) to avoid
being stricken as a SLAPP. (Jarrow Formulas, Inc. v. LaMarche, supra, 31
Cal.4th at p. 738 [“the anti-SLAPP statute requires only ‘a minimum level of legal
sufficiency and triability’ [citation].”], quoting Linder v. Thrifty Oil Co. (2000) 23
Cal.4th 429, 438, fn. 5.)17
17
The parties made various evidentiary objections to each other’s affidavits
and the attachments thereto in the trial court, but the trial court declined to rule on
the objections and neither side pressed for a ruling. Therefore, the objections are
deemed to be forfeited. (Gallant v. City of Carson (2005) 128 Cal.App.4th 705,
710), and “in reviewing the trial court’s order denying the motion, we consider all
(Footnote continued on next page)
35
To prevail on a malicious prosecution claim, the plaintiff must show that
the prior action (1) was commenced by or at the direction of the defendant and
was pursued to a legal termination favorable to the plaintiff; (2) was brought
without probable cause; and (3) was initiated with malice. (Sheldon Appel Co. v.
Albert & Oliker (1989) 47 Cal.3d 863, 871.)
The question of probable cause is “whether as an objective matter, the prior
action was legally tenable or not.” (Sheldon Appel Co. v. Albert & Oliker, supra,
47 Cal.3d. at p. 868.) “A litigant will lack probable cause for his action either if
he relies upon facts which he has no reasonable cause to believe to be true, or if he
seeks recovery upon a legal theory which is untenable under the facts known to
him.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 164-165.) “In a situation
of complete absence of supporting evidence, it cannot be adjudged reasonable to
prosecute a claim.” (Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 597.) Probable
cause, moreover, must exist for every cause of action advanced in the underlying
action. “[A]n action for malicious prosecution lies when but one of alternate
theories of recovery is maliciously asserted . . . . “ (Bertero v. National General
Corp. (1974) 13 Cal.3d 43, 57, fn. 5; Crowley v. Katleman (1994) 8 Cal.4th 666,
679, 695.)
“The ‘malice’ element . . . relates to the subjective intent or purpose with
which the defendant acted in initiating the prior action. [Citation.] The motive of
the defendant must have been something other than that of bringing a perceived
guilty person to justice or the satisfaction in a civil action of some personal or
(Footnote continued from previous page.)
the evidence presented by the parties.” (Slauson Partnership v. Ochoa (2003) 112
Cal.App.4th 1005, 1014, fn. 4.)
36
financial purpose. [Citation.] The plaintiff must plead and prove actual ill will or
some improper ulterior motive.” (Downey Venture v. LMI Ins. Co. (1998) 66
Cal.App.4th 478, 494; Albertson v. Raboff (1956) 46 Cal.2d 375, 383 [“The
malice required in an action for malicious prosecution is not limited to actual
hostility or ill will toward plaintiff but exists when the proceedings are instituted
primarily for an improper purpose.”].) Malice “may range anywhere from open
hostility to indifference. [Citations.] Malice may also be inferred from the facts
establishing lack of probable cause.” (Grindle v. Lorbeer (1987) 196 Cal.App.3d
1461, 1465-1466.)
The parties do not dispute that the underlying action in this case was
terminated in Soukup’s favor when it was dismissed as a SLAPP. With respect to
the remaining elements of her malicious prosecution claim – lack of probable
cause and malice — we conclude that Soukup’s evidentiary showing is sufficient
to demonstrate a probability of prevailing for purposes of the anti-SLAPP statute.
Soukup was named as a defendant in four causes of action in the underlying
lawsuit; malicious prosecution, defamation, breach of fiduciary duty and tortious
interference with business relationships. To prevail on her malicious prosecution
claim she is required to show only that defendants lacked probable cause for one
of these causes of action. Soukup can show that Hafif lacked probable cause for
his malicious prosecution claim in the underlying action because her evidence
demonstrates that she did not initiate any of the lawsuits against him that were the
basis of that claim; that she had minimal or no contact with any of her
codefendants in the time period during which those actions were filed; and that
Hafif, while maintaining that Soukup was “involved in the general work of
implementing the attack on me” conceded at his deposition that he would not be
37
producing any witnesses to testify that she assisted her codefendants in filing their
complaints.18
Hafif’s defamation cause of action was based on the Orange County
Register article in which his former clients accused him of overcharging them for
costs and fees. No allegations were made with respect to the second article
involving the Department of Labor’s investigation into LOHH’s employee
pension plan in which Soukup was quoted. Again, Soukup presented evidence
that she had had minimal or no contact with Hafif’s dissatisfied clients and Benson
at the time the allegedly defamatory newspaper article appeared. No evidence was
presented that she was the source of the information provided to the reporter who
wrote the first article.
The breach of fiduciary duty cause of action was based on allegations that
Soukup provided confidential information to Benson regarding certain cases on
which she worked as a paralegal. Soukup presented uncontroverted evidence that
her discussions with Benson about cases at LOHH occurred while both of them
were employed at LOHH and, she therefore argues, were privileged under the
qualified privilege for communications between interested parties. (Civ. Code, §
47, subd. (c); Coastal Abstract Service v. First American Title (1999) 173 F.3d
725, 735 [“California’s common interest privilege, Cal. Civ. Code § 47(c),
immunizes a person’s statement to others on matters of common interest from
liability in tort, provided that the person did not act with malice,” fn. omitted];
Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 285
[Communications between a company’s employees may fall within the privilege].)
18
Defendants assert that Hafif “withdrew” his malicious claim against
Soukup, but fail to show where in the record that cause of action was dismissed
against her.
38
Moreover, she also presented evidence that, to the extent he used this information
in his wrongful termination actions against Hafif, it was without her knowledge or
consent, and she denied having conspired with him to extort money or cases from
Hafif. No evidence was presented that the qualified privilege did not apply to
Soukup’s communications with Benson during the course of their mutual
employment at LOHH or that Soukup had disclosed confidential information to
Benson after Benson had left LOHH in furtherance of the alleged conspiracy
against Hafif.19
Hafif’s cause of action for tortious interference with business relationships
was premised on allegations that Soukup had conspired with other defendants to
“devise[] a ‘gameplan’ [sic] wherein each sought to personally benefit by
presenting a united front against plaintiffs to demand unjustified reductions in the
fees and costs they owed plaintiffs for their legal services.” Again, Soukup
presented evidence that she had no or minimal contact with her codefendant in the
timeframe during which the conspiracy was alleged to have been planned and
carried out. She also pointed out that she would not have personally benefited
from the alleged conspiracy, a point seemingly conceded by Hafif who, during a
deposition, while insisting Soukup was part of the conspiracy, acknowledged he
had no idea why she was involved in it.
As against this evidence tending to demonstrate lack of probable cause,
defendants generally assert that probable cause existed to support their claims
19
Defendants cite a declaration from O.J. Freed, a mutual friend of Hafif and
Benson, in which he states that Benson said Soukup had told him that Hafif had
accepted bribes “to sell out clients.” Even accepting the declaration at face value,
it fails to set forth the time, place and circumstances of this conversation between
Benson and Soukup nor does it, on its face, support the specific causes of action
alleged against Soukup by Hafif.
39
against Soukup without making a specific evidentiary showing as to each claim.20
The general showing, moreover, consists primarily of rulings in other cases
involving parties other than Soukup; for example, the denial of a summary
adjudication motion brought by Terrie Hutton in the underlying action. But
Hutton was not named in the cause of action for breach of fiduciary duty. Thus,
even if the denial of her summary adjudication motion could be construed as a
generalized finding of probable cause as to those counts in which both she and
Soukup were named, Soukup could still prevail on her malicious prosecution
claim based on the malicious prosecution of the cause of action for breach of
fiduciary duty. (Crowley v. Katleman, supra, 8 Cal.4th at p. 695.) Defendants cite
other rulings as disparate as the judgment in favor of Hafif and Stock in Terry
Schielke’s malicious prosecution action, and the order granting Stock’s motion to
strike Terrie Hutton’s malicious prosecution action as a SLAPP. But defendants
do not contend, much less demonstrate, that these rulings have collateral estoppel
effect on the issue of whether probable cause existed to support the four causes of
20
In their briefs, defendants also repeatedly purport to incorporate by
reference arguments from briefs they filed in the Court of Appeal and here in this
case and in the Hutton case. They offer no authority that permits such
incorporation and nothing in the California Rules of Court allows this practice. To
the contrary, the relevant rule requires briefs filed in this court to conform to rule
14 which governs the content and form of briefs filed in the Court of Appeal.
(Cal. Rules of Ct., rule 28.1(a).) It is well settled that the Court of Appeal does not
permit incorporation by reference of documents filed in the trial court. (Colores v.
Board of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2. [“[I]t is not
appropriate to incorporate by reference, into a brief, points and authorities
contained in trial court papers, even if such papers are made a part of the appellate
record”]; Estate of Wiedemann (1964) 228 Cal.App.2d 362, 370-371
[incorporation by reference of points and authorities filed in the trial court violates
California Rules of Court, rule 14].) The same principle bars defendants’ attempts
to incorporate by reference arguments advanced in other appellate briefs. We
therefore disregard these purported incorporations by reference.
40
action in the underlying suit in which Soukup was named as a defendant. Absent
such effect, they are irrelevant to that issue.21 Equally irrelevant are the opinions
of the Court of Appeal in this case as to which we have granted review, and are,
therefore, no longer published or citable. (Quintano v. Mercury Cas. Co. (1995)
11 Cal.4th 1049, 1067, fn. 6; Cal. Rules of Ct., rule 976(d)).)
Finally, defendants repeatedly argue that Terrie Hutton’s diaries
demonstrate that they had probable cause to proceed against Soukup in the
underlying action. Preliminarily, defendants did not obtain these diaries until after
they had filed the underlying action and, therefore, the diaries could not have
provided them with probable cause for filing the action and naming Soukup as a
defendant in it.22 Even more crucially, in all the hundreds of pages of Hutton’s
diaries that appear in the appellate record, defendants fail to cite a single passage
that specifically would lend support to their theory that Soukup actively conspired
with any of her codefendants in the underlying action.
With respect to malice, Soukup argues that the fact the underlying action
was dismissed as a SLAPP — that is, that it was brought primarily to chill the
exercise of her constitutional rights of speech and petition — establishes a prima
facie showing of malice because interference with the exercise of those rights is,
21
Accordingly we deny defendants’ request to judicially notice the statement
of decision in the Schielke case. (People v. Rowland (1992) 4 Cal.4th 238, 268,
fn. 6 [reviewing court need not take judicial notice of irrelevant court records].)
22
Moreover, as the Court of Appeal concluded in the appeal affirming the
dismissal of the underlying action as a SLAPP against Soukup and Hutton,
however, those diaries were properly held to be inadmissible. Defendants make
no showing that these diaries would be admissible against Soukup on any theory
of admissibility. Therefore, no matter how often or insistently defendants attempt
to rely on these diaries, the inescapable fact is that, as to Soukup, they are and
remain inadmissible.
41
by definition, an improper purpose to initiate and maintain litigation. We do not
agree with the premise of Soukup’s claim that an action eventually adjudicated to
be a SLAPP was necessarily initiated and maintained with malice. However,
Soukup also cites evidence of attitudes ranging from “open hostility to
indifference” (Grindle v. Lorbeer, supra, 196 Cal.App.3d at p. 1465) that satisfies
the requirement of a showing of minimal merit to her malicious prosecution claim
so as to defeat defendants’ motions. For example, she cites evidence that Hafif
physically threatened her when she refused to accept unregistered stock as part of
LOHH’s distribution of its pension plan, the event she alleges ultimately resulted
in her having been named as a defendant in the underlying action; that Stock told
her Hafif had named her in the underlying action to prevent her from making
trouble for him in the future; that Hafif admitted at a deposition he had no
witnesses to testify to her involvement in the malicious prosecution cause of action
in the underlying action; that Gregory Hafif threatened the lawyer Soukup retained
to look into the pension plan matter with lawsuits and attorneys fee claims; that
Aitken failed to provide her with an explanation as to why she had been named a
defendant in the underlying action and refused her request to be dismissed from
the action; and that Stock refused to dismiss Hafif’s appeal of the dismissal of the
underlying action after she prevailed on her anti-SLAPP motion. Moreover,
malice can also be inferred from the evidence that defendants lacked probable
cause to initiate and maintain the underlying action against Soukup. (See id., at
p. 1366.) We conclude that Soukup’s showing is sufficient to establish malice for
the limited purpose of defeating defendants’ motions to strike.
Stock separately argues that Soukup cannot show a probability of
prevailing on her malicious prosecution claim as to him because his role in the
underlying action was limited to that of appellate counsel and there is no tort of
malicious prosecution of an appeal. In the context of this case, we disagree.
42
In
Zamos v. Stroud (2004) 32 Cal.4th 958, we held that “an attorney may
held liable for continuing to prosecute a lawsuit discovered to lack probable
cause.” (Id. at p. 960.) Therefore, we concluded that the malicious prosecution
plaintiff in Zamos, by demonstrating that the defendant attorneys continued to
prosecute the underlying action after discovering it was without probable cause,
had made a sufficient showing to defeat defendants’ anti-SLAPP motion to
dismiss. In so finding, we expressly distinguished Coleman v. Gulf Ins. Group
(1986) 41 Cal.3d 782, on which Stock principally relies for the proposition that
there is no malicious prosecution claim against an attorney who did not initiate the
underlying action, but participated only in the appeal.
“In
Coleman, the underlying action was commenced by the plaintiffs in the
malicious prosecution action. Therefore, in order to establish their cause of action
against the defendant’s insurer for malicious prosecution, the plaintiffs argued that
the insurer, in maliciously causing the defendant to file a frivolous appeal, caused
the initiation of a separate action. This is the argument the Coleman court
rejected. [¶] . . . [¶] The operative distinction . . . is between continuing a
prosecution and continuing a defense. In Coleman, the defendant in the malicious
prosecution action had merely continued its defense of the underlying wrongful
death action by causing the filing of the appeal in that action. Here, according to
the evidence presented in opposition to the anti-SLAPP motion, defendants in the
malicious prosecution action continued their prosecution of the underlying fraud
action after learning it was baseless.” (Zamos v. Stroud, supra, 32 Cal. 4th at
pp. 968-969, fn. omitted.)
The filing of an appeal is “ ‘the continuation of an action.’ ” (Zamos v.
Stroud, supra, 32 Cal.4th at p. 969.) Under our reasoning in Zamos, therefore, the
maintenance of an appeal by plaintiffs in an action discovered to lack probable
cause may expose the plaintiff’s attorney to liability for malicious prosecution.
43
We therefore agree with Soukup that Stock cannot insulate himself from such
liability, as a matter of law, simply because he asserts that his role in the
underlying action was limited to that of appellate counsel. As we have observed
in another context, the filing of such an appeal, which stays the litigation, may
itself be a tactic that operates to the detriment of the defendant as to whom the
action has been found to be a SLAPP. (See Varian Medical Systems v. Delfino,
supra, 35 Cal.4th at p. 195.) Nor are we persuaded that the denial of Soukup’s
request for sanctions against Stock in the appeal of the underlying action
demonstrates that the underlying action was supported by probable cause; that
denial merely represented a finding that the argument advanced on appeal – that
the trial court abused its discretion by entertaining Soukup’s belated motion to
strike – was not frivolous. (§ 907.)
Soukup also maintains that Stock’s participation in the underlying action
was greater than simply appearing as appellate counsel. The record appears to
bear this out. For example, in the declaration Stock filed in support of his motion
to strike Soukup’s action, he states that he was involved in attempting to settle the
action and personally communicated the settlement offer to her. In an earlier
declaration he stated he made appearances on behalf of Hafif in the underlying
action and assisted in the preparation of motions including preparing “a demurrer
to [Soukup’s] cross-complaint against Mr. Hafif.” Soukup also presented
evidence that Stock appeared in at least one deposition in the underlying action.
Based on the respective showings of the parties, we conclude that Soukup
has shown a probability of prevailing on her malicious prosecution claim.
Accordingly, on this ground we reverse the judgment of the Court of Appeal.
44
III. JUDGMENT
We reverse the judgment of the Court of Appeal and remand the case for
further proceedings consistent with our opinion.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
CORRIGAN,
J.
45
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Soukup v. Hafif/Soukup v. Stock
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 118 Cal.App.4th 1490
Rehearing Granted
__________________________________________________________________________________
Opinion No. S126715
Date Filed: July 27, 2006
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Gregory C. O’Brien, Jr.
__________________________________________________________________________________
Attorneys for Appellant:
Ronald C. Stock, in pro. per., for Defendant and Appellant.
Law Offices of Herbert Hafif, Greg K. Hafif, Jeanne A. Sterba; Law Offices of James J. Moneer, James J.
Moneer; Aitken Aitken & Cohn, Darren O. Aitken and Wylie A. Aitken for Defendants and Appellants
Law Offices of Herbert Hafif et al.
__________________________________________________________________________________
Attorneys for Respondent:
Peggy J. Soukup, in pro. per.; Law Offices of Gary L. Tysch, Gary L. Tysch; Dell’Ario & LeBouef and
Alan Charles Dell’Ario for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Ronald C. Stock
Law Offices of Ronald C. Stock
P.O. Box 5261
Fullerton, CA 92838-0261
(714) 381-9229
James J. Moneer
Law Offices of James J. Moneer
1901 First Avenue, First Floor
San Diego, CA 92101
(619) 544-9151
Alan Charles Dell’Ario
Dell’Ario & LeBouef
201 Nineteenth Street, Suite 200
Oakland, CA 94612
(510) 763-7700
Opinion Information
| Date: | Docket Number: |
| Thu, 07/27/2006 | S126715 |
Parties
| 1 | Hutton, Terry (Plaintiff and Respondent) Represented by John D. Rowell Cheong Denove Rowell et al. 10100 Santa Monica Boulevard, Suite 2460 Los Angeles, CA |
| 2 | Soukup, Peggy J. (Plaintiff and Respondent) 284-C E Lake Mead Drive, #157 Henderson, NV 89015 Represented by Alan Charles Dell'Ario Dell'Ario & LeBoeuf, PC 201 Nineteenth Street, Suite 200 Oakland, CA |
| 3 | Hafif, Herbert (Defendant and Appellant) Represented by James J. Moneer Attorney at Law 1901 First Avenue, 1st Floor San Diego, CA |
| Disposition | |
| Jul 27 2006 | Opinion: Reversed |
| Dockets | |
| Jul 23 2004 | Request for publication filed (initial case entry) respondent Terry Hutton |
| Aug 2 2004 | Petition for review filed respondent Peggy J. Soukup in pro per |
| Aug 6 2004 | Received Court of Appeal record |
| Aug 10 2004 | 2nd petition for review filed counsel for respondent, Terry Hutton 40k |
| Sep 9 2004 | Received: Letter from counsel for Respondent {Terry Hutton} re recent decision from the Second District FLATLEY v. MAURO (B171570). |
| Sep 24 2004 | Time extended to grant or deny review To October 29, 2004. |
| Oct 20 2004 | Petition for review granted (civil case) Werdegar, J., was absent and did not participate. Votes: George, C.J., Kennard, Baxter, Chin, Brown, and Moreno, JJ. |
| Oct 20 2004 | Letter sent to: parties regarding Certification of Interested Entities or Persons. |
| Nov 4 2004 | Certification of interested entities or persons filed appellant, in pro per , Peggy Soukup |
| Nov 16 2004 | Request for extension of time filed to file opening brief/merits (requesting to January 20, 2005), by pro per appellant Peggy Soukup |
| Nov 18 2004 | Request for extension of time filed to file opening brief on the merits, by respondent Terry Hutton (asking to January 20, 2004) |
| Nov 22 2004 | Extension of time granted To January 20, 2005 to file respondent's opening brief on the merits. The application of respondent to file one consolidated opening brief on the merits for S126715 and S126864 is hereby DENIED. |
| Nov 29 2004 | Extension of time granted to Jan. 20, 2005 for respondent ( Hutton) to serve and file the opening brief on the merits. |
| Dec 10 2004 | Received: respondent's Certification of Interested Entities or Persons. |
| Dec 16 2004 | Notice of substitution of counsel filed. Attorney Alan Charles Dell'Ario substitutes in as counsel for pro per respondent (Peggy J. Soukup). |
| Jan 10 2005 | Request for extension of time filed by counsel for respondent Peggy J. Soukup, requesting a 21-day extension to and including February 10, 2005 to file respondent's opening brief on the merits. |
| Jan 12 2005 | Request for extension of time filed to file brief on the merits, by respondent Terry Hutton (asking to 2/10/05) |
| Jan 12 2005 | Extension of time granted To February 10, 2005 to file respondent's opening brief on the merits. |
| Jan 21 2005 | Extension of time granted To February 10, 2005 to file Respondent's Opening Brief on the Merits. |
| Feb 14 2005 | Opening brief on the merits filed respondent Terry Hutton < CRC 40.1(b) > |
| Feb 14 2005 | Opening brief on the merits filed By respondent {Peggy J. Soukup} / CRC 40.1(b). |
| Feb 18 2005 | Request for extension of time filed to file answer brief on the merits, by appellants Hafif. |
| Feb 25 2005 | Extension of time granted To May 10, 2005 to file appellant's answer brief on the merits. |
| Apr 12 2005 | Request for extension of time filed by appellants Hafif, to file answer brief on the merits: to 07-10-05 |
| Apr 15 2005 | Received: Letter from counsel for respondent dated April 15, 2005, in opposition to appellant's extension of time to file appellant's answer brief on the merits. |
| Apr 18 2005 | Extension of time granted To July 11, 2005 to file appellant's answer brief on the merits. |
| Apr 19 2005 | Received: from counsel for appellant Hafif amended p.o.s. for E.O.T. re: answer brief/merits. |
| Jun 20 2005 | Request for extension of time filed by counsel for appellants requesting a 20-day extension to and including July 30, 2005 to file appellants' answer brief on the merits. |
| Jun 20 2005 | Opposition filed By counsel for Respondent {Soukup} to request for extension of time. |
| Jun 22 2005 | Extension of time granted To July 29, 2005 to file appellant's answer brief on the merits. |
| Jul 29 2005 | Answer brief on the merits filed to Hutton. Appellants (Law Offices of Herbert Hafif et al.) by counsel. |
| Jul 29 2005 | Request for judicial notice filed (granted case) to Soukup. Appellants (Law Offices of Herbert Hafif et al.) by counsel. |
| Jul 29 2005 | Answer brief on the merits filed to Soukup. Apellants (Law Offices of Herbert Hafif et al.) by counsel. |
| Jul 29 2005 | Request for judicial notice filed (granted case) to Hutton. Appellants (Law Offices of Herbert Hafif et al.) by counsel. |
| Aug 2 2005 | Motion to strike filing (non-AA) of the answer brief on the merits and corresponding request for judicial notice received. Respondent (Soukup) by counsel. |
| Aug 4 2005 | Received: amended proof of service for Answer Brief on the Merits as to Hutton and Req. for Judicial Notice |
| Aug 4 2005 | Received: amended proof of service for answer Brief on the Merits as to Sokup and Request for judicial notice. |
| Aug 5 2005 | Received: Declaration of Noemi Garzon in Opposition to Soukup's Motion to Strike Hafif's Answer Brief and Request for Judicial Notice. Appellant (Hafif) by counsel |
| Aug 5 2005 | Received: Declaration of James J. Moneer in Opposition to Soukup's motion to Strike Hafif's Answer Brief and Request for Judicial Notice. Appellant (Hafif) by counsel. |
| Aug 8 2005 | Order filed Respondent (Soukup) motion to strike the Answer Brief on the Merits and Request for Judicial Notice is hereby DENIED. |
| Aug 10 2005 | Request for extension of time filed Respondent ( Soukup) to file the Reply Brief on the merits. Asking to Sept. 22, 2005. |
| Aug 12 2005 | Extension of time granted to serve and file the reply brief on the merits to and including September 22, 2005. |
| Aug 16 2005 | Request for extension of time filed to file reply brief / merits respondent [HUTTON] to 09-22-05 |
| Aug 17 2005 | Extension of time granted to file the reply brief on the merits to and including September 22, 2005. |
| Sep 19 2005 | Request for extension of time filed by counsel for respondent, Soukup. Respondent is suggesting that the Court solicit respondent's views on new legislation, thirty days following which she will file her reply, thereby completing the briefing. In the alternative, she applies for an extension of ten days in which to file her reply brief on the merits October 2, 2005. (to court for permission) |
| Sep 20 2005 | Request for extension of time filed to file respondent (HUTTON) reply brief/merits to-> 10-03-05 |
| Sep 21 2005 | Extension of time granted to October 3, 2005 for respondent ( Sokup) to file the reply brief on the merits. |
| Sep 21 2005 | Extension of time granted to October 3, 2005 for respondent ( Hutton) to file the reply brief on the merits. |
| Oct 4 2005 | Filed: Petitioner's ( Hutton) application to file oversized reply brief on the merits. |
| Oct 4 2005 | Received: Respondent's ( Soukup) Reply Brief on the merits in excess of the word count 40.1(b) |
| Oct 4 2005 | Request for judicial notice filed (granted case) resp [HUTTON] four volumes orignal and copies submitted under separate covers. |
| Oct 4 2005 | Reply brief filed (case fully briefed) Respondent ( SOUKUP). |
| Oct 4 2005 | Reply brief filed (case fully briefed) resp. [HUTTON] 40.1[b] |
| Oct 6 2005 | Filed: Respondent's ( Soukup) objection to Appellant's ( Hafif) request for judicial notice. |
| Oct 6 2005 | Received: Respondent's ( Soukup) objection to Appellant's ( Hafif ) request for judicial notice. |
| Oct 7 2005 | Received: from counsel for Soukup document entitled: Errata to Soukup's Reply Brief on the Merits |
| Oct 7 2005 | Opposition filed by counsel for Soukup to Hafif's request for judicial notice. |
| Oct 20 2005 | Received: from counsel for respondent (Soukup): letter dated October 17, 2005 bringing AB1158, which is discussed in the reply brief on the merits, to the court's attention. |
| Oct 24 2005 | Received Court of Appeal record |
| Nov 2 2005 | Supplemental briefing ordered The court requests the parties file supplemental briefs directed to the following questions. (1) Should newly-enacted Code of Civil Procedure section 425.18 be applied retroactively to pending cases? (2) If so, what is the effect of Code of Civil Procedure section 425.18 on the issue on which this court granted review in these consolidated cases, particularly with respect to subdivision (h) of that statute which states: "A special motion to strike may not be filed against a SLAPPback by a party whose filing or maintenance of the prior cause of action from which the SLAPPback arises was illegal as a matter of law"? Supplemental briefing is to proceed as follows: In Soukup v. Hafif, respondents may file a letter brief responding to the arguments regarding Code of Civil Procedure section 425.18 made in petitioner Soukup's reply brief, filed on October 4, 2005, on or before December 2, 2005. Petitioner Soukup may file a reply letter brief to such response on or before December 16, 2005. In Hutton v. Hafif, respondents may file a letter brief responding to the argument regarding Code of Civil Procedure section 425.18 made in petitioner Hutton's reply brief, filed on October 4, 2005, on or before December 2, 2005. Petitioner Hutton may file a reply letter brief to such response on or before December 16, 2005. No further extensions of time for the filing of these briefs are contemplated by the Court. |
| Nov 30 2005 | Request for judicial notice filed (granted case) Herbert Hafif, appellant |
| Dec 2 2005 | Letter brief filed /as to Soukup Herbert Hafif, appellant James Moneer, retained counsel. |
| Dec 2 2005 | Letter brief filed /as to Hutton Herbert Hafif, appellant James Moneer, retained counsel |
| Dec 13 2005 | Filed: response to aplt Hafif's request for judicial notice Peggy Soukup, respondent Alan Charles Dell'Ario, counsel |
| Dec 14 2005 | Request for extension of time filed to file respondent {Hutton} supplemental Letter Brief. asking to December 23, 2005. |
| Dec 16 2005 | Letter brief filed resp Soukup |
| Dec 21 2005 | Filed: Terry Hutton, respondent, response to Herbert Hafif's, appellant, Request For Judicial Notice |
| Dec 27 2005 | Letter brief filed Terry Hutton, respondent John Rowell, counsel (supplemental letter brief) (sent by Fed-X & filed with permission) |
| Feb 8 2006 | Order filed Review in Soukup v. Hafif, B152759 is severed from review in Hutton v. Hafif, B154184. The clerk of the court is directed to refile Hutton v. Hafif under S140997. Further action in Hutton v. Hafif, S140997, is deferred pending consideration & disposition of a related issue in Flatley v. Mauro, S128429 (CRC rule 28.2(d)2) or pending further order of this court. Chin, J., was absent and did not participate. |
| Feb 9 2006 | Filed: letter from counsel for respondent Hutton re unavailability for possible oral argument on March 9 or 10, 2006. **Clerk's note: The March oral argument calendar has been filed. This case is not scheduled. |
| May 2 2006 | Case ordered on calendar May 31, 2006, at 1:30 p.m., in San Francisco |
| May 4 2006 | Case consolidated with: S126864. S126715 and S126864 are hereby ordered consolidated for argument and decision. Because the two cases present similar issues, the court has determined that they should be argued together and that oral argument should proceed as follows: Argument by respondent Soukup, not to exceed 30 minutes, less any time for rebuttal. Argument by appellant Stock, not to exceed 15 minutes. Argument by appellant Hafif, not to exceed 15 minutes. Rebuttal, if any, by respondent Soukup. |
| May 12 2006 | Filed: Additional authorities to be discussed at oral argument on May 31, 2006. Herbert Hafif, Appellant James J. Moneer, Counsel. |
| May 18 2006 | Received: letter dated 5-17-06 from A. Dell'Ario, counsel for resp Soukup |
| May 18 2006 | Filed: additional authorities, dated 5-17-06 Hafif and Aitken appellants James Moneer, counsel |
| May 22 2006 | Filed: Additional authorities for oral argument (dated 5-19-06) Hafif and Aiken Appellants James Moneer, counsel |
| May 23 2006 | Filed: letter, dated 5-22-06 Peggy Soukup, plaintiff and respondent Alan Charles Dell'Ario, counsel |
| May 26 2006 | Received: Letter dated May 26, 2006. Peggy Soukup, plaintiff and respondent Alan Charles Dell'Ario, counsel |
| May 31 2006 | Cause argued and submitted |
| Jul 27 2006 | Opinion filed: Judgment reversed and remanded to the Court of Appeal for further proceedings Majority opinion by Moreno, J. ----------------------joined by George, C.J., Kennard, Baxter, Werdegar, Chin, Corrigan, JJ. |
| Aug 14 2006 | Rehearing petition filed Herbert Hafif, et al appellants James Moneer, counsel (timely per CRC 40.1b) |
| Aug 16 2006 | Time extended to consider modification or rehearing to 10-25-2006 |
| Aug 18 2006 | Received: Untimely Petition for rehearing/modification Ronald Stock, appellant, in pro per |
| Aug 18 2006 | Request for modification of opinion filed Ronald Stock, appellant, in pro se |
| Aug 21 2006 | Request for extension of time filed to file an answer to the petition for rehearing, to 9-6-06 Peggy Soukup, respondent Alan Dell'Ario, counsel |
| Aug 22 2006 | Filed: Motion to strike appellant Stock's "Petition for rehearing" Peggy Soukup, respondent Alan Dell'Ario, counsel *note: The Court previously directed that Stock's brief would be filed as a request to modify opinion (not a petition for rehearing) |
| Aug 24 2006 | Extension of time granted to 9-6-06 for respondent Soukup to file the answer to the petition for rehearing. |
| Aug 24 2006 | Extension of time granted the time for respondent to file any answer to appellant's petition to modify opinion to correct material factual error is extended through September 8, 2006. |
| Sep 7 2006 | Answer to rehearing petition filed Answer to Hafif appellants' petition for rehearing Peggy Soukup, respondent Alan Charles Dell'Ario, counsel (timely per CRC 40.1b) |
| Sep 11 2006 | Opposition filed to appellant Stock's request to modify opinion Peggy Soukup, respondent Alan Dell'Ario, counsel (timely per CRC 40.1b) |
| Oct 11 2006 | Rehearing denied Hafifs' "Petition for Rehearing", filed on August 14, 2006, is denied. Stock's "Petition to Modify Opinion to Correct Material Factual Error; and/or Rehearing", filed as a request for modification of the opinion on August 18, 2006, is denied. The motion to strike as untimely "Stock's Petition to Modify Opinion to Correct Material Factual Error; and/or Rehearing" is dismissed as moot. |
| Oct 11 2006 | Remittitur issued (civil case) |
| Oct 18 2006 | Returned record to 2DCA |
| Briefs | |
| Feb 14 2005 | Opening brief on the merits filed |
| Feb 14 2005 | Opening brief on the merits filed |
| Jul 29 2005 | Answer brief on the merits filed |
| Jul 29 2005 | Answer brief on the merits filed |
| Oct 4 2005 | Reply brief filed (case fully briefed) |
| Oct 4 2005 | Reply brief filed (case fully briefed) |
