Beilenson v. Superior Court

• Decision Date: 24 April 1996
• Docket Number: No. B097615,B097615
• Citation: 52 Cal.Rptr.2d 357,44 Cal.App.4th 944
• Parties: , 96 Cal. Daily Op. Serv. 2832, 96 Daily Journal D.A.R. 4710 Anthony C. BEILENSON et al., Petitioners, v. The SUPERIOR COURT of the State of California, County of Ventura, Respondent, Richard P. SYBERT, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

Page 357

52 Cal.Rptr.2d 357

44 Cal.App.4th 944, 96 Cal. Daily Op. Serv. 2832,

96 Daily Journal D.A.R. 4710

Anthony C. BEILENSON et al., Petitioners, v. The SUPERIOR COURT of the State of California, County of Ventura, Respondent Richard P. SYBERT, Real Party in Interest.

No. B097615.

Court of Appeal, Second District, Division 6, California.

April 24, 1996.

[44 Cal.App.4th 946] Rogers & Harris and Michael Harris, Los Angeles, for Petitioners.

No appearance for Respondent.

Bell, McAndrews & Hiltachk and Charles H. Bell, Jr., Sacramento, for Real Party in Interest.

OPINION AND ORDER

GILBERT, Associate Justice.

Our Constitution protects everyone--even politicians. Code of Civil Procedure section 425.16 ¹ was enacted to discourage the filing of strategic lawsuits against public participation--otherwise known as SLAPP suits. Here, we hold the anti-SLAPP law protects statements made by a candidate for public office and his supporters.

In 1994, petitioner, Anthony C. Beilenson, defeated real party in interest, Richard P. Sybert, in an election for United States Congress. After the election, Sybert filed a complaint for libel and injunctive relief against Congressman Beilenson, a campaign worker, a consulting firm, and a campaign committee (hereafter collectively referred to as Beilenson). The complaint alleges that during the week prior to the election, Beilenson distributed and mailed libelous campaign literature.

A campaign mailer, entitled "Rich Sybert Ripped Off California Taxpayers", charged that "[w]hile on the public payroll [at the State Office of Planning and Research], Rich Sybert maintained a private law practice on the side. Sybert's clients included foreign investors, a bank, and an insurance company that had a vested interest in the actions of state government. [p] Rich Sybert's clients paid him more than $140,000 for providing 'legal services.' Sybert took this money for representing private interests, at the same time he was taking $98,285 a year from taxpayers whom he was supposed to be serving full time. This was a serious conflict of interest and breach of public trust."

The campaign mailer also asserted that Cynthia McClain-Hill was the former vice-chair of the Los Angeles Ethics Commission, that she praised Beilenson, and she questioned whether Sybert could devote full-time attention to his state position and also maintain a private law practice.

The complaint charges the following as being untrue:

1. Sybert "ripped off" California taxpayers because he worked less than full-time for the State;

2. Sybert's maintaining a practice of law while working for the State was unusual and unethical;

3. Sybert represented clients with a vested interest in the actions of state government and this was a conflict of interest and breach of public trust;

4. Sybert received "legal fees" from his clients; and

5. Beilenson misrepresented statements attributed to Cynthia McClain-Hill and also misrepresented that she was the vice-chair of the Los Angeles Ethics Commission.

Beilenson brought a SLAPP motion to dismiss Sybert's lawsuit because it arose from the exercise of his constitutional right of petition or free speech. (§ 425.16.)

In opposing the motion, Sybert argued that Beilenson recklessly failed to take any steps to discover whether Sybert was in violation of Fair Political Practices Commission (FPPC) laws and whether he was attending to his duties with the Office of Planning and Research. Had Beilenson conducted a reasonable investigation, he would have discovered that Sybert was not in violation of any law.

Sybert offered numerous declarations attesting to his having worked long hours while in the employ of the Office of Planning and Research. He produced a declaration, on information and belief, from a former commissioner of the FPPC, attesting that its records indicate that Sybert had fully complied with the filing requirements of said entity and that FPPC had issued an advisory opinion allowing him to maintain his practice of law. He also included a letter from Cynthia McClain-Hill in which she denied having made the remarks attributed to her in the mailer and stating that she was a member of the ethics commission, but was not the vice-chair.

Beilenson responded with a declaration that, at all times, he believed all of the statements to have been true. He was of the opinion that, although perhaps not illegal, it is a breach of ethical standards and a conflict of interest for a lawyer to maintain a law practice while in the full-time employ of the State of California.

Respondent superior court denied the motion. The court stated that it did not believe section 425.16 to be applicable to political campaigns. Moreover, it found that Sybert met his burden of proving there was a "possibility that [he] will prevail on the claim...." The court did not state what standard of proof it applied in making this determination.

Beilenson sought relief by way of an extraordinary writ. He asserted that section 425.16 applies in a defamation action that arises out of an election campaign. (See Evans v. Unkow (1995) 38 Cal.App.4th 1490, 45 Cal.Rptr.2d 624; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 42 Cal.Rptr.2d 464.) Beilenson further maintained that Sybert, a public figure, did not sustain his burden because Beilenson's statements, even if false, were opinions and not made with malice. (New York Times v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686.)

Because of the significance of the issues tendered in this petition and because a prompt determination of these issues is necessary, we have granted an alternative writ of mandate. (See Britt v. Superior Court (1978) 20 Cal.3d 844, 851-852, 143 Cal.Rptr. 695, 574 P.2d 766.)

DISCUSSION

I.

After the parties argued the case and submitted it for decision by this court, they informed us they had settled. The issues tendered here, however, are of great public import and transcend the concerns of these particular parties. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 746-747, 29 Cal.Rptr.2d 804, 872 P.2d 143; Green v. Superior Court (1974) 10 Cal.3d 616, 622, fn. 6, 111 Cal.Rptr. 704, 517 P.2d 1168; see also Wharton v. Superior Court (1991) 231 Cal.App.3d 100, 103, 282 Cal.Rptr. 349.)

Published appellate decisions furnish precedent on matters of compelling public interest. (State ex rel. State Lands Com. v. Superior Court (1995) 11 Cal.4th 50, 62, 44 Cal.Rptr.2d 399, 900 P.2d 648; see Cal. Rules of Court, rule 976.) We offer our decision to give guidance to parties and to trial courts to enable them to better understand the law governing this type of litigation.

II.

In subdivision (a) of section 425.16, the Legislature declared there to be a "disturbing increase in lawsuits brought primarily to chill the valid exercise of constitutional rights of freedom of speech and ... participation in matters of public significance ... should not be chilled through abuse of the judicial process."

When a lawsuit arises out of the exercise of free speech or petition, a defendant may move to strike the complaint. (§ 425.16; Robertson v. Rodriguez, supra, 36 Cal.App.4th at p. 355, 42 Cal.Rptr.2d 464.) The complaint is subject to dismissal unless the plaintiff establishes "a probability that he or she will prevail on the claim." (§ 425.16, subd. (b); Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823-825, 33 Cal.Rptr.2d 446.)

Sybert contends that the statute does not apply to a political campaign. He argues the statute was designed to protect those ordinary citizens who find themselves sued in retaliation for the exercise of their rights under the First Amendment (e.g., homeowners who challenge developers). He invites us to search the legislative record in order to ascertain the intent of the statute.

We need not do so because the statutory language is clear. (Morse v. Municipal Court (1974) 13 Cal.3d 149, 156, 118 Cal.Rptr. 14, 529 P.2d 46.) The statute does not limit its application to certain types of petition activity. The Legislature recognized that "all kinds of claims could achieve the objective of a SLAPP suit--to interfere with and burden the defendant's exercise of his or her rights." (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 652, 49 Cal.Rptr.2d 620.)

"[T]he constitutional guarantee [of free speech] has its fullest and most urgent application precisely to the conduct of campaigns for political office." (Buckley v. Valeo (1976) 424 U.S. 1, 15, 96 S.Ct. 612, 632, 46 L.Ed.2d 659, 685.) "Thus, those engaged in political debate are entitled not only to speak responsibly but to '... speak foolishly and without moderation.' (Baumgartner v. United States (1944) 322 U.S. 665, 674, 64 S.Ct. 1240, 1245, 88 L.Ed. 1525, 1531.)" (Desert Sun Publishing Co. v. Superior Court (1979) 97 Cal.App.3d 49, 52, 158 Cal.Rptr. 519.)

There is nothing in the language of section 425.16 that denies its use by politicians. We take the statute as we find it, and conclude that section 425.16 is available to Beilenson. (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 46 Cal.Rptr.2d 880 [section 425.16 motion available where the actionable statement was made during a recall election]; see also Robertson v. Rodriguez, supra, 36 Cal.App.4th 347, 42 Cal.Rptr.2d 464 [statute's protection applied where defendant published a mailer which stated that a city councilman, facing a recall, had been fined for operating an illegal business out of his home].)

III.

We next determine whether Sybert established the probability of his success. Because the existence of the libel action potentially impairs the right of free speech, we will independently decide whether Sybert made a sufficient showing of the probability of success of his lawsuit. (Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485 499-511, 104 S.Ct. 1949, 1958-1965, 80 L.Ed.2d 502, 515-523; Berry v. City of Santa Barbara (1995) 40 Cal.App.4th 1075, 1082, 47...