Thomas v. Quintero

• Decision Date: 04 February 2005
• Docket Number: No. A103597.,A103597.
• Citation: 126 Cal.App.4th 635,24 Cal.Rptr.3d 619
• Court: California Court of Appeals Court of Appeals
• Parties: Richard E. THOMAS, Plaintiff and Respondent, v. John QUINTERO, Defendant and Appellant.

24 Cal.Rptr.3d 619

126 Cal.App.4th 635

Richard E. THOMAS, Plaintiff and Respondent, v. John QUINTERO, Defendant and Appellant.

No. A103597.

Court of Appeal, First District, Division 2.

February 4, 2005.

Rehearing Denied February 22, 2005.

Review Denied May 11, 2005.

California Anti-SLAPP Project and Mark Goldowitz, Saratoga, Robins Yeamans, Richard Phelps, Oakland, for Appellant.

William L. Dunbar, Oakland, for Respondent.

RUVOLO, J.

I. INTRODUCTION

Appellant John Quintero (Quintero) appeals from the denial of his special motion to strike, brought under California's anti-SLAPP statute (Code Civ. Proc., § 425.16),¹ in response to respondent Richard E. Thomas's (Thomas) petition seeking injunctive relief against civil harassment (§ 527.6). The conduct sought to be enjoined was demonstrating and leafleting by Quintero and others against Thomas's alleged practices as a landlord of multiple rental units.

We reverse, holding that anti-SLAPP motions may be filed challenging petitions for injunctive relief brought under section 527.6, because they constitute "causes of action" under the anti-SLAPP law, and there is nothing in section 425.16 which would exempt such petitions from the broad reach of this remedial statute. However, the anti-SLAPP statute does not apply to a proceeding under section 527.6, subdivision (c), which is limited to determining whether an interim temporary restraining order (TRO) should be issued as a prelude to a hearing on the petition for injunctive relief.

We also conclude that Quintero satisfied his threshold burden of proving that the petition for a civil harassment injunction arose out of public conduct "in connection with an issue of public interest," and was, thus, protected activity (prong one) under the anti-SLAPP statute (§ 425.16, subd. (e)(3)). Lastly, we determine that there was no likelihood Thomas would prevail on the merits of his petition (prong two) (§ 425.16, subd. (b)(1)). Accordingly, the anti-SLAPP motion should have been granted.² We remand to allow the trial court to make an appropriate award of attorney fees under section 425.16, subdivision (c).

II. FACTUAL AND PROCEDURAL BACKGROUND

On May 9, 2003³, Thomas filed a petition for injunction prohibiting harassment against Quintero pursuant to section 527.6. The petition was filed on Form CH-100, a form adopted for mandatory use by the Judicial Council of California (Judicial Council) in response to section 527.6, subdivision (m) requiring it to do so.⁴ On the face of the petition, Thomas checked a box indicating that the petition was being accompanied by an application for a TRO.

The petition alleged that Quintero was among a group of people who appeared at Thomas's church, and who then harassed members of the congregation "with the stated purpose of causing extreme embarrassment and severe emotional distress to [Thomas]." The petition went on to explain that good cause existed to include members of Thomas's family within the protection of the orders requested because Quintero and others had also demonstrated at Thomas's home, and threatened to harass his family, thereby placing them "in fear of their security at home." It was noted that Quintero had indicated an intention to return to Thomas's church and home, with the effect of disrupting church activities and invading Thomas's free exercise of religion and right to privacy. The petition was accompanied by declarations signed by Thomas, Charles Cryer, and Sue Louie, the latter two being members of Thomas's church who witnessed the events described in the petition.

At an ex parte hearing on May 9, Alameda County Superior Court Judge Julie M. Conger issued an order to show cause (OSC) using Judicial Council Form CH-120, and set a hearing for June 6 to determine if an injunction should issue as prayed for in the petition. In the meantime, the court granted a TRO which ordered Quintero not to "contact, molest, harass, attack, strike, threaten, sexually assault, batter, telephone, send any message to, follow, stalk, destroy the personal property of, disturb the peace of, keep under surveillance, or block movements in public places or thoroughfares of [Thomas and his family]." Quintero was also ordered, on an interim basis, to stay at least 100 yards away from Thomas, his family members, and the pastor and members of Thomas's church. Lastly, again on an interim basis, Quintero was prohibited from "distributing false and misleading handbills on private property without permit and in violation of local ordinances, referring to [Thomas] or any other person protected under this order."

The parties appeared before Judge Conger on June 6, at which time Quintero requested a continuance of the hearing on the OSC.⁵ The request was granted, and the hearing was continued to July 25. The court ordered that the TRO remain in effect until then.

Ten days later, on June 16, Quintero filed a special motion to strike under the anti-SLAPP statute (§ 425.16), setting the hearing for July 15 in the regular law and motion department of the Alameda County Superior Court before Judge James A. Richman. The motion was accompanied by Quintero's declaration (with exhibits), and a supporting brief. Thomas filed an opposing brief with his own declaration on July 3, and a reply brief was filed by Quintero on July 10, along with certain evidentiary objections to Thomas's declaration. A hearing on the special motion to strike was held on July 15, and Judge Richman denied Quintero's motion.

Thereafter, Thomas's OSC came on for hearing before Judge Conger on July 25, at which time the judge heard testimony from the parties and found that the incidents alleged in the petition did not "rise to the level necessitating a three year civil harassment restraining order." It is also noted in the court's minute order that Quintero agreed not to have further contact with Thomas's pastor, and the matter was dismissed.⁶ This appeal challenges only the denial of Quintero's special motion to strike by Judge Richman.

III. LEGAL DISCUSSION

A. The Anti-SLAPP Statute and the Standard of Review on Appeal

Section 425.16, commonly referred to as the anti-SLAPP law, provides in relevant part: "(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. To this end, this section shall be construed broadly. [¶] (b)(1) 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. [¶] (2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. [¶] (3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination. [¶] ... [¶] (e) 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."

Under the statute, the court makes a two-step determination: "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) `A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)' [citation]. 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. (§ 425.16, subd. (b)(1)....)" (Navellier v. Sletten (2002) 29 Cal.4th 82, 88, 124 Cal.Rptr.2d 530, 52 P.3d 703; see also Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal. Rptr.2d 507, 52 P.3d 685 (Equilon Enterprises); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, 124 Cal.Rptr.2d 519, 52 P.3d 695.) "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." (Navellier v. Sletten, supra, 29 Cal.4th at p. 89, 124 Cal.Rptr.2d 530, 52 P.3d 703.)

A ruling on a special motion to strike under section 425.16 is reviewed de novo. (Kyle v. Carmon (1999) 71 Cal. App.4th 901, 907, 84 Cal.Rptr.2d 303.) This includes whether the...