Robertson v. Rodriguez

• Decision Date: 29 June 1995
• Docket Number: Nos. B075094,B077083,s. B075094
• Citation: 42 Cal.Rptr.2d 464,36 Cal.App.4th 347
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Daily Journal D.A.R. 8632 John O. ROBERTSON, Plaintiff and Appellant, v. Alex RODRIGUEZ, et al., Defendants and Appellants. Civ.

Page 464

42 Cal.Rptr.2d 464

36 Cal.App.4th 347, 95 Daily Journal D.A.R. 8632

John O. ROBERTSON, Plaintiff and Appellant, v. Alex RODRIGUEZ, et al., Defendants and Appellants.

Civ. Nos. B075094, B077083.

Court of Appeal, Second District, Division 3, California.

June 29, 1995.

[36 Cal.App.4th 351] Robert Marc Hindin, Los Angeles, for plaintiff and appellant.

Tuttle & Taylor, Merrick J. Bobb, and Jeffrey D. Wexler, Los Angeles, for defendants and appellants.

KLEIN, Presiding Justice.

Plaintiff and appellant John O. Robertson (Robertson) appeals a judgment striking his complaint and dismissing his action pursuant to Code of Civil Procedure section 425.16 and awarding $15,000 in attorney fees to defendants Alex Rodriguez (Rodriguez), Jack Cluck, Joseph Graffio and David Silva (collectively, defendants). ¹

Defendants also appeal, seeking review of the trial court's attorney fees ruling, and contend they were entitled to an award of $23,847.

The issues include whether section 425.16 is applicable to a cause of action which arose before its effective date, the standard for determining whether a claim has a "probability" of prevailing, and whether the statute authorizes an award of "reasonable" attorney fees to a prevailing defendant as opposed to the defendant's actual attorney fees.

We conclude the statute applies to actions which accrued before its effective date because it does not change the legal effect of past conduct. A plaintiff may withstand a motion to strike by demonstrating sufficient facts to establish a prima facie case. Further, the prevailing party, whether plaintiff or defendant, is limited to recovery of reasonable attorney fees. For these and other reasons discussed below, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Robertson was a councilman for the City of Cudahy (the City), as were the defendants. Defendants were the proponents of a recall petition against Robertson.

On November 5, 1992, Robertson filed a libel action against defendants. Although the complaint alleged defendants had made several libelous statements, Robertson's brief challenges the trial court's ruling with respect to a single statement by Rodriguez.

In the second cause of action directed solely against Rodriguez, Robertson pled that in October 1992, Rodriguez published a mailer asserting Robertson "was fined for running an illegal business out of his home apparently feeling that as a Councilman he, Mr. Robertson, did not have to obey the law." A copy of the mailer was appended to the complaint as an exhibit.

Defendants filed their answers and then brought a special motion to strike pursuant to section 425.16. Defendants contended the complaint could not stand because Robertson could not show a probability he would prevail on the claim and that the statements were true and privileged under the First Amendment due to Robertson's status as a public official. Defendants also requested attorney fees pursuant to the statute.

The moving papers were supported by Rodriguez's declaration, which stated: "At some point in time, I became aware that the City ... had brought a criminal prosecution Attached to Rodriguez's declaration were copies of the cashier's check and the civil compromise and abatement agreement (the civil compromise) among Cudahy's city prosecutor, Robertson and Earth Engineering, Inc. (EEI), of which Robertson was president. The civil compromise recited EEI would reimburse the city $1,000 for investigation and enforcement costs, EEI and Robertson's denial of violating the law, and their agreement not to conduct business operations or corporate activities in a residential zone of the City.

against [Robertson] for running a business out of his home in Cudahy, in violation of City zoning laws. In August or September 1992, I asked Mr. Joseph [the city manager and city clerk] about the prosecution. Mr. Joseph told me that [Robertson] had paid the City $1,000 and had agreed to move his business outside the City.... Mr. Joseph also gave me copies of a $1,000 cashier's check from [Robertson] to the City ... and of the agreement ending the prosecution of [Robertson]."

In opposition, Robertson argued section 425.16 was inapplicable because the cause of action arose prior to the statute's effective date of January 1, 1993, and that libelous statements made during a recall campaign or election were actionable.

Robertson's declaration asserted, inter alia, he required more time to ascertain the facts and had not yet taken the depositions of councilmen Cluck, Graffio and Silva, although he had taken the depositions of Rodriguez and Joseph. With respect to Rodriguez's reliance on the civil compromise in his moving declaration, Robertson contended the document clearly and equivocally illustrated any charge was dissolved by the civil compromise and there was no conviction or fine.

On March 1, 1993, the trial court heard and granted the motion, ruling the "[j]ob performance of a public official is a matter of public concern. Plaintiff's declaration does not give rise to actual malice. Legislative intent is to discourage lawsuits where political conduct is involved. [Section] 425.16 was enacted for that purpose. This motion treated as a motion for summary judgment...." ²

On March 24, 1993, defendants filed a motion for costs and attorney fees, requesting $23,847 in total. (§ 425.16, subd. (c).)

Robertson argued the attorney fees motion was stayed by his filing of a notice of appeal on March 29, 1993 from the March 1, 1993 ruling.

The trial court rejected Robertson's jurisdictional argument and awarded $15,000 to defendants.

Both Robertson and defendants appealed the judgment.

CONTENTIONS

Robertson contends: his libel claim is not subject to section 425.16 because the statute does not have retroactive application; he was denied the right to engage in meaningful discovery to meet the constitutional requirement of establishing actual malice and to meet the standard of proof imposed by the statute; and, with knowledge of the terms of the civil compromise, Rodriguez could not have printed in good faith the language in the mailer that Robertson was fined for running an illegal business out of his home.

Defendants argue they were entitled to an award equalling their entire attorney fees and costs because the statute does not limit a prevailing defendant's recovery to reasonable attorney fees.

DISCUSSION

1. Background of section 425.16.

The purpose underlying section 425.16 is set forth in the statute, which states: "(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.

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).)

To meet this concern, the statute provides that a cause of action arising from a person's exercise of the constitutional rights of petition or free speech in connection with a public issue is subject to a special motion to strike, unless it is determined the plaintiff has established a probability of prevailing on the claim. (§ 425.16, subd. (b).) That determination is made on the basis of the pleadings, as well as supporting and opposing affidavits stating the facts upon which the liability or defense is based. (§ 425.16, subd. (b).) Once it has been determined there is a probability the plaintiff will prevail, that determination is inadmissible at any later stage of the case and does not affect the applicable burden or degree of proof. (§ 425.16, subd. (b).)

Thus, section 425.16 is analogous to other statutes requiring the plaintiff to make a threshold showing, which are aimed at eliminating meritless litigation at an early stage. (See Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823-824, 33 Cal.Rptr.2d 446.)

One such statute is section 425.13, which bars inclusion of a punitive damages claim in certain actions against health care providers unless the plaintiff first demonstrates a "substantial probability" plaintiff "will prevail" on the claim. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 709, 34 Cal.Rptr.2d 898, 882 P.2d 894; Looney v. Superior Court (1993) 16 Cal.App.4th 521, 537, 20 Cal.Rptr.2d 182.) Similarly, section 425.14 precludes the filing of a claim for punitive damages against a religious corporation unless the plaintiff can demonstrate the existence of sufficient evidence to establish a prima facie right to recover punitive damages, that is, sufficient evidence to permit the claim to go to a jury under the clear and convincing standard. (Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1734-1735, 19 Cal.Rptr.2d 625.) Also, Civil Code section 1714.10 bars the assertion of a cause of action against an attorney for a civil conspiracy with a client unless the trial court determines there is a "reasonable probability" the plaintiff will prevail. (Civ.Code, § 1714.10, subd. (a); Hung v. Wang (1992) 8 Cal.App.4th 908, 929, 11 Cal.Rptr.2d 113.)

Hung explained the trial court's role in scrutinizing a proposed claim under Civil Code section 1714.10. The trial court cannot weigh the evidence. "Whether or not the evidence is in conflict, if the [plaintiff] has presented a sufficient pleading and has presented evidence showing that a prima facie case will be established at trial, the trial court must grant the petition." Hung v. Wang, supra, 8 Cal.App.4th at pp. 933-934, 11 Cal.Rptr.2d 113.) This test avoids infringing the right to a jury trial. (Id., at p. 934, 11 Cal.Rptr.2d 113.)

The Hung test, calling for a prima facie showing by the plaintiff, has been extended to evaluation of claims pursuant to section 425.16. (Wilcox v. Superior Court, supra, 27 Cal.App.4th at...