Soukup v. Stock

• Decision Date: 27 May 2004
• Docket Number: No. B154311.,B154311.
• Citation: 15 Cal.Rptr.3d 303,118 Cal.App.4th 1490
• Court: California Court of Appeals Court of Appeals
• Parties: Peggy J. SOUKUP, Plaintiff and Respondent, v. Ronald C. STOCK, Defendant and Appellant.

15 Cal.Rptr.3d 303

118 Cal.App.4th 1490

Peggy J. SOUKUP, Plaintiff and Respondent, v. Ronald C. STOCK, Defendant and Appellant.

No. B154311.

Court of Appeal, Second District, Division 5.

May 27, 2004.

Certified for Partial Publication.^*

As Modified on Denial of Rehearing June 21, 2004.

Review Granted October 20, 2004.

Ronald C. Stock, in pro. per., for Defendant and Appellant.

Peggy J. Soukup, in pro. per.; Law Offices of Gary L. Tysch and Gary L. Tysch for Plaintiff and Respondent.

TURNER, P.J.

I. INTRODUCTION

Defendant, Ronald C. Stock, appeals from an order denying his Code of Civil Procedure¹ section 425.16 special motion to strike. The present lawsuit is for abuse of process and malicious prosecution. An underlying lawsuit was dismissed pursuant to section 425.16. Defendant represented the plaintiffs in the underlying lawsuit. This lawsuit followed and defendant filed a special motion to strike. We conclude the special motion to strike in the present lawsuit should have been granted Accordingly, we reverse the order under review.

II. BACKGROUND

Defendant's special motion to strike was directed at the complaint filed by Peggy J. Soukup, plaintiff, alleging abuse of process and malicious prosecution. In an underlying action, Herbert Hafif, Cynthia D. Hafif, Greg K. Hafif (the Hafifs), and the Law Offices of Herbert Hafif (the Hafif firm) sued plaintiff. Defendant was one of the attorneys who represented the Hafifs and the Hafif firm in the underlying action against plaintiff. The underlying lawsuit involved allegations that plaintiff here, Ms. Soukup, a former employee of the Hafif firm, had disclosed to a third party confidential information obtained during her employment. The disclosure was purportedly made in furtherance of a conspiracy to defame the Hafif firm. The underlying lawsuit was dismissed in response to a section 425.16 special motion to strike.

Our colleagues in the Fourth Appellate District, Division Three, affirmed the order granting the special motion to strike. (Law Offices of Herbert Hafif et al. v. Soukup et al. (April 27, 2000, G020977) [nonpub. opn.].) In an unpublished opinion, the Court of Appeal held: the trial court erred in considering the plaintiffs' subjective motives for bringing the action, but the error was harmless; the allegedly actionable conduct consisted of Ms. Soukup's complaints to the Department of Labor, which statements were within the protective purview of section 425.16; and the plaintiffs failed to meet their burden of establishing a probability of succeeding on their claims against Ms. Soukup. (Ibid.) The complaint in the present suit alleged that the underlying lawsuit was brought in order to "obtain collateral advantage" so that plaintiff would withdraw a complaint she had made to the United States Department of Labor and not pursue an "ERISA action." Further, it was alleged the underlying lawsuit was brought: to destroy plaintiff's credibility in other disputes; without probable cause; and maliciously.

In response to plaintiff's complaint, defendant filed a special motion to strike. The trial court denied the special motion to strike. The trial court concluded that the special motion to strike procedure did not apply to an attorney representing a party in another lawsuit.

III. DISCUSSION

A. Applicable Legal Principles And Standard of Review

A special motion to strike may be filed in response to "`a meritless suit filed primarily to chill the defendant's exercise of First Amendment rights.'" (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783, 54 Cal. Rptr.2d 830, quoting Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2, 33 Cal.Rptr.2d 446, disapproved on another point in Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5, 124 Cal.Rptr.2d 507, 52 P.3d 685.) Enacted in 1992, section 425.16, authorizes a court to summarily dismiss such meritless suits. (Stats.1992, ch. 726, § 2, pp. 3523-3524.) The purpose of the statute was set forth in section 425.16, subdivision (a) as follows: "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...."

Under section 425.16, any cause of action against a person "arising from any act ... in furtherance of the ... right of petition or free speech ..." in connection with a public issue must be stricken unless the court finds a "probability" that the plaintiff will prevail on whatever claim is involved. (§ 425.16, subd. (b)(1); Equilon Enterprises, LLC v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 65, 124 Cal. Rptr.2d 507, 52 P.3d 685; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1415, 103 Cal.Rptr.2d 174.) Section 425.16, subdivision (e) provides: "As used in this section, `act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." In order to protect the constitutional rights of petition and free speech, the statute is to be construed broadly. (§ 425.16, subd. (a); Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119-1121, 81 Cal.Rptr.2d 471, 969 P.2d 564; Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 1175-1176, 50 Cal.Rptr.2d 62.)

When a special motion to strike is filed, the trial court must consider two components. First, the court must consider whether the moving defendant has sustained its burden of showing that the lawsuit falls within the purview of section 425.16; i.e., arises from protected activity. The moving defendant has the initial burden of establishing a prima facie case that plaintiff's cause of action arises out of actions in the furtherance of the rights of petition or free speech. (§ 425.16, subd. (b)(1); Equilon Enterprises, LLC v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67, 124 Cal.Rptr.2d 507, 52 P.3d 685; Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 721, 77 Cal.Rptr.2d 1, disapproved on another point in Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1123, fn. 10, 81 Cal.Rptr.2d 471, 969 P.2d 564.)

Second, once the defendant meets this burden, the obligation then shifts to the plaintiff to establish a probability that she or he will prevail on the merits. (§ 425.16, subd. (b)(1); Equilon Enterprises, LLC v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 63, 124 Cal. Rptr.2d 507, 52 P.3d 685; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115, 81 Cal.Rptr.2d 471, 969 P.2d 564.) The moving defendant has no obligation to demonstrate that the plaintiff's subjective intent was to chill the exercise of constitutional speech or petition rights. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89, 124 Cal.Rptr.2d 530, 52 P.3d 703; Equilon Enterprises, LLC v. Consumer Cause, Inc., supra, 29 Cal.4th at pp. 62-64, 124 Cal.Rptr.2d 507, 52 P.3d 685.) Nor must a moving defendant show that the action had the effect of chilling free speech or petition rights. (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89, 124 Cal.Rptr.2d 530, 52 P.3d 703; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76, 124 Cal.Rptr.2d 519, 52 P.3d 695.) As to the second step of the special motion to strike decision-making process, the Supreme Court in Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741, 3 Cal.Rptr.3d 636, 74 P.3d 737, described the trial judge's duties as follows: "[I]f a court ruling on [a special motion to strike] concludes the challenged cause of action arises from protected petitioning, it then `determines whether the plaintiff has demonstrated a probability of prevailing on the claim.' (Equilon, supra, 29 Cal.4th at p. 67 [124 Cal.Rptr.2d 507, 52 P.3d 685].) To satisfy this prong, the plaintiff must `state[] and substantiate [] a legally sufficient claim.' (Rosenthal v. Great Western Fin. Securities [(1996)] 14 Cal.4th [394,] 412 [58 Cal.Rptr.2d 875, 926 P.2d 1061].) `Put another way, 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.'" (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [123 Cal.Rptr.2d 19, 50 P.3d 733].)" (Fn.omitted.) We conduct independent review of the trial court's decision. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1364, 102 Cal.Rptr.2d 864, disapproved on another point in Equilon Enterprises, LLC v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5, 124 Cal.Rptr.2d 507, 52 P.3d 685; Mission Oaks Ranch, Ltd. v. County of Santa Barbara, supra, 65 Cal.App.4th at p. 721, 77 Cal.Rptr.2d 1.)

B. The Order Denying The Special Motion To Strike Should Have Been Granted

Plaintiff argues the special motion to strike was correctly denied because the underlying lawsuit did not arise...