Does section 425.16 apply to this action?
If it does, did the Church demonstrate there is a probability it would prevail?
Did the trial court abuse its discretion in setting the amount of the award of attorney fees?
1. Section 425.16 provides a remedy for SLAPP suits.
Section 425.16 is designed to protect citizens in the exercise of their First Amendment constitutional rights of free speech and petition. It is California's response to the problems created by meritless lawsuits brought to harass those who have exercised these rights.
SLAPP suits have been defined as ". . . 'civil lawsuits . . . that are aimed at preventing citizens from exercising their political rights or punishing those who have done so.' (Canan & Pring, Strategic Lawsuits Against Public Participation (1988) 35 Social Problems 506.)" (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815.) They are brought, not to vindicate a legal right but rather to interfere with the defendant's ability to pursue his or her interests. Characteristically, the SLAPP suit lacks merit; it will achieve its objective if it depletes defendant's resources or energy. The aim is not to win the law suit but to detract the defendant from his or her objective, which is adverse to the plaintiff. (See, Wilcox v. Superior Court, supra, at pp. 815-817, and authorities cited therein.)
California enacted section 425.16 to provide a procedural remedy to resolve such a suit expeditiously. Section 425.16 provides, in relevant part, as follows:
"(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.
"(b) 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. 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.
"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.
"(c) In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.
" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(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 any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; 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; or 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.
"(f) The special motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper.
"(g) All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The motion shall be noticed for hearing not more than 30 days after service unless the docket conditions of the court require a later hearing. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision. . . ."
The moving party bears the initial burden of establishing a prima facie showing the plaintiff's cause of action arises from the defendant's free speech or petition activity. (Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 820.) "The defendant may meet this burden by showing the act which forms the basis for the plaintiff's cause of action was a written or oral statement made before a legislative, executive, or judicial proceeding . . . ." (Ibid.) If the defendant establishes a prima facie case, then the burden shifts to the plaintiff to establish "'a probability that the plaintiff will prevail on the claim,'" i.e., "make a prima facie showing of facts which would, if proved at trial, support a judgment in plaintiff's favor." (Id. at p. 823.) In making its determination, the trial court is required to consider the pleadings and the supporting and opposing affidavits stating the facts upon which the liability or defense is based. (section 425.16, subd. (b).) Discovery is stayed upon the filing of the motion. (section 425.16, subd. (g).) However, upon noticed motion and for good cause shown, the court may allow specified discovery. [FN3]
a. Section 425.16 applies to a cause of action arising from defendant's valid exercise of his petition rights, including litigation activities.
In accordance with the accepted principles of statutory interpretation, we first examine the language of the statute to determine the Legislature's intent. If the language is clear and unambiguous there is no need to resort to other interpretative aids, such as the legislative history. (Rojo v. Kliger (1990) 52 Cal.3d 65, 73.)
Section 425.16 applies to a cause of action against a person "arising from any act of that person in furtherance of the person's right to petition or free speech under the United States or California Constitution in connection with a public issue." (section 425.16, subd. (b).)
Subdivision (e) expressly defines the First Amendment activity from which the subject cause of action arises as "includ[ing] [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; or [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." (Emphasis added.)
The right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances. (McDonald v. Smith (1985) 472 U.S. 479, 482-484; California Motor Transport Co. v. Trucking Unlimited (1972) 404 U.S. 508, 510; Bill Johnson's Restaurants, Inc. v. NLRB (1983) 461 U.S. 731, 740; see, also, Matossian v. Fahmie (1980) 101 Cal.App.3d 128, 135-137.).) "The [United States Supreme Court] traditionally has held that the Due Process Clauses protect civil litigants who seek recourse in the courts, either as defendants hoping to protect their property or as plaintiffs attempting to redress grievances." (Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 429.) [FN4] A cause of action "arising from" defendant's litigation activity may appropriately be the subject of a section 425.16 motion to strike.
The Church contends section 425.16 does not apply because its action against Wollersheim is not an attack on Wollersheim personally and would not interfere with Wollersheim's right to pursue his claims against the Church -- i.e., the Church's complaint does not "arise" from any act in furtherance of Wollersheim's right of petition or free speech because the Church does not challenge Wollersheim's right to file a lawsuit nor is its lawsuit "brought primarily to chill the valid exercise" of that right.
The Church's approach to the interpretation of section 425.16 is too restrictive, suggesting that only a direct personal attack on the defendant would be subject to a motion to strike.
The statutory language, however, is clear and unambiguous. (Rojo v. Kliger, supra, 52 Cal.3d at p. 73.) It specifically applies to "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition . . . ." including a "written or oral statement or writing made in connection with an issue under . . . review by a . . . judicial body . . . ." (section 425.16, subds. (b) italics added, and (e).) And, thus, it literally applies to any direct attack on the judgment in the prior action, which resulted from Wollersheim's petition activity.
Furthermore, an examination of the history of the underlying litigation reveals that the instant action is consistent with a pattern of conduct by the Church to employ every means, regardless of merit, to frustrate or undermine Wollersheim's petition activity. When a party to a lawsuit engages in a course of oppressive litigation conduct designed to discourage the opponents' right to utilize the courts to seek legal redress, the trial court may properly apply section 425.16. We hold that in making that determination, the trial court may properly consider the litigation history between the parties. The legislative rationale in enacting the statute is consistent with such an analysis because acts which are designed to discourage the bringing of a lawsuit are no more oppressive than acts which seek to prolong the litigation to a point where it is economically impracticable to maintain and pursue it to a final conclusion. When one party to a lawsuit continuously and unsuccessfully uses the litigation process to bludgeon the opponent into submission, those actions must be closely scrutinized for constitutional implications.
In the instant action the Church's actions clearly fall within the ambit of section 425.16. Among its other litigation strategies, the Church has filed two non-meritorious federal court actions as well as this one. [FN 5] The Church has filed numerous appeals in state and federal courts and has prolonged Wollersheim's 1980 lawsuit for 15 years. When the litigation actions of the Church are analyzed in the light of the entire litigation history between the parties it appears the instant lawsuit was brought by the Church against Wollersheim: (a) in retaliation for his 1980 lawsuit against the Church; (b) to punish him economically for bringing that lawsuit, and (c) to obliterate the value of any victories over the Church by forcing him to abandon his efforts to recover the damages awarded in the prior action by making it too costly to do so. [FN 6]
[FN 6] Wollersheim declares he has spent $300,000 and is indebted for another $900,000 as a result of his disputes with the Church.
The Church argues that it has every right to exhaust its legal remedies, including appeal rights. We agree. However, when a litigant continuously and unsuccessfully uses the litigation process in filing unmeritorious motions, appeals and lawsuits, such actions have constitutional implications which may be reviewed on a motion under section 425.16.
The Church also argues it has been successful in its post trial motion and appellate strategy and therefore, even if the litigation history is considered, it favors the Church. We disagree. The only relief the Church has obtained from all of its lawsuits, petitions for writs of mandate, appeals to the California Court of Appeal and the Ninth Circuit Court of Appeals, the California and the United States Supreme Courts was obtained in the initial state court appeal in 1989 which resulted in a reduction of Wollersheim's judgment. The fact that both the California and the United States Supreme Courts granted the Church's petitions was no more than fortuitous as both courts at that time were reviewing the issue of punitive damages. In each instance, however, the case was remanded to the intermediate appellate courts with no change in ruling.
The Church also argues that Wollersheim's tort action against a private party (the Church) was not a matter of public interest subject to the protection of section 425.16. Subdivision (e), describing protected activity, refers to three categories; only the category of activity referred to as the "exercise of free speech rights" is subject to the limitation that it be "made in a place open to the public or a public forum in connection with an issue of public interest." [FN 7] The first two categories parallel the description of privileged communications in Civil Code section 47, subdivision (b) and include judicial proceedings without any limitation as to subject matter. [FN8]
[FN 8] Civil Code section 47, subdivision (b) refers to privileged publication or broadcast made in any "(1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure . . . [with certain exceptions thereafter listed]."
But even if we were to assume that a motion to strike pursuant to section 425.16 were limited to issues of public interest, the motion would apply to this action against Wollersheim, arising from his lawsuit against the Church. Although matters of public interest include legislative and governmental activities, they may also include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals. Examples are product liability suits, real estate or investment scams, etc. (See Wilcox, supra, involving an action against private entities.) The record reflects the fact that the Church is a matter of public interest, as evidenced by media coverage and the extent of the Church's membership and assets. Furthermore, the underlying action concerned a fundamental right, the constitutional protection under the First Amendment religious practices guaranties, and addressed the scope of such protection, concluding that the public has a compelling secular interest in discouraging certain conduct even though it qualifies as a religious expression of the Scientology religion. (Wollersheim v. Church of Scientology, supra, 212 Cal.App.3d at pp. 887-900.)
The Church objects that the application of section 425.16 to any action arising from the defendant's exercise of petition rights through litigation would subject all counterclaims and other claims relating to a defendant's prior legal action to a special motion to strike.
Although a cross-complaint may be subject to a section 425.16 motion, not all cross-complaints would qualify as SLAPP suits. A defendant may file a cross-complaint against the plaintiff for any existing cause of action regardless of its nature and origins. (section 428.10, subd. (a).) Only those cross-complaints alleging a cause of action arising from the plaintiff's act of filing the complaint against the defendant and the subsequent litigation would potentially qualify as a SLAPP action. (section 425.16, subds. (b) and (d).) For example, a person may attempt to bring a SLAPP suit alleging that libelous allegations or statements were contained in the complaint itself. However, because defendant's allegations are privileged communications under Civil Code section 47, the suit would be meritless. (See, e.g., California Physicians' Service v. Superior Court (1992) 9 Cal.App.4th 1321.)
A compulsory cross-complaint on a "related cause of action" against the plaintiff (section 426.30, subd. (a)) would rarely, if ever, qualify as a SLAPP suit arising from petition activity. By definition, a "related cause of action" is "a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint." (section 426.10, subd. (c), emphasis added.) The SLAPP suit is not "related" to the transaction or occurrence which is the subject of the plaintiff's complaint, but arises out of the litigation process itself.
b. Section 425.16 applies to any cause of action arising from petition activity, not only tort actions.
The Church also argues section 425.16 applies to tort actions, only. [FN 9]
Considering the purpose of the provision, expressly stated, the nature or form of the action is not what is critical but rather that it is against a person who has exercised certain rights such as Wollersheim did in the prior action against the Church. Although the "favored causes of action" in SLAPP suits may be defamation, various business torts, nuisance and intentional infliction of emotional distress (Wilcox, supra, at p. 816), the Legislature did not limit application of the provision to such actions, recognizing 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.
The Church argues that "The legislature was especially concerned by the threat to the exercise of constitutional rights posed by a complaint demanding costly damages, which is likely to be a tort suit demanding punitive damages. Thus, because of the possibility of punitive damages, a SLAPP suit in tort poses the greatest threat to the exercise of constitutional rights; therefore, it was against these tort suits that the legislature directed its statutory remedy." Once again the Church's construction of the legislative intent behind section 425.16 is too restrictive. There is no such limiting language in the statute. Moreover, the free exercise of the constitutional right of judicial redress is no less threatened by the employment of non-tortious litigation practices designed to economically "bludgeon the opposition into submission." In either case the result is to subject the litigant to economic loss sufficient to discourage the free exercise of a constitutionally protected right.
Furthermore, the Church's argument that its complaint sought no relief or judgment directly against Wollersheim and therefore he would remain free to assert and pursue his claims against the Church is equally misplaced. The Church's complaint asserted that the judgment in the prior action should be declared null and void and a new trial should be ordered. The effect of such an order would be to directly impact Wollersheim by requiring him to incur further economic hardship by relitigating a matter that has already consumed 15 years of litigation; a five month jury trial; at least two appeals and six writ petitions in the Court of Appeal; two petitions for review in the California Supreme Court; two petitions for certiorari in the United States Supreme Court and two lawsuits in Federal District Court, all arising out of Wollersheim's original 1980 lawsuit against the Church.
2. The Church's action was properly subjected to a section 425.16 motion to strike.