3. The Church failed to establish the "probability" it would prevail on its claim.
Once the defendant has met the burden of establishing that section 425.16 applies to the lawsuit, the burden shifts to the plaintiff to establish "that there is a probability that the plaintiff will prevail on the claim." (section 425.16, subd. (b).) On appeal, we independently review the entire record to determine whether the Church made a sufficient prima facie showing that it would prevail in light of the applicable law relative to the claim. (Cf., Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357-358 [libel action which requires clear and convincing evidence of malice].)
"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." (section 425.16, subd. (b).)
Wilcox held that the "probability" hurdle was met if the plaintiff demonstrated sufficient facts to establish a prima facie case, similar to the standard used in determining a motion for nonsuit or directed verdict. (Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 824.) "To establish 'a probability that the plaintiff will prevail on the claim' the plaintiff must make a prima facie showing of facts which would, if proved at trial, support a judgment in plaintiff's favor." (Id. at p. 823.) The Wilcox court observed that the original version of Senate Bill No. 1264 required a "substantial" probability, but it was amended to eliminate the adjective. (Id. at p. 824.) Nevertheless, the court reasoned the Legislature did not intend a threshold lower than a "reasonable probability." "Rather, it appears the Legislature eliminated the word 'substantial' in order to avoid the implication the trial court was to weigh the evidence which . . . would raise a serious constitutional problem [regarding the preservation of the plaintiff's right to a jury trial]. [Citation.]" (Id. at pp. 824-825, 823.)
The court explained, ". . . [T]he common features of SLAPP suits are their lack of merit and chilling of defendants' valid exercise of free speech and the right to petition the government for a redress of grievances. Section 425.16 was intended to address those features by providing a fast and inexpensive unmasking and dismissal of SLAPP's. It is also presumed the Legislature intended to enact a valid statute. Anti-SLAPP legislation, therefore, must be fast, inexpensive and constitutional or it is of no benefit to SLAPP victims, the court or the public. In order to satisfy due process, the burden placed on the plaintiff must be compatible with the early stage at which the motion is brought and heard (section 425.16, subds. (f) and (g)) and the limited opportunity to conduct discovery (subd. (g)). In order to preserve the plaintiff's right to a jury trial the court's determination of the motion cannot involve a weighing of the evidence." (Id. at p. 823; citations omitted, original italics.)
Subsequent appellate decisions have employed the standard applied in Wilcox. (See, Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1496; LaFayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 867, review den.; Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 15, review den.; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 355; Dixon v. Superior Court (1994) 30 Cal.App.4th 733, 746, review den.) It is recognized, with the requirement that the court consider the pleadings and affidavits of the parties, the test is similar to the standard applied to evidentiary showings in summary judgment motions pursuant to section 437c and requires that the showing be made by competent admissible evidence within the personal knowledge of the declarant. (Ludwig v. Superior Court, supra, at pp. 15-16.). [FN 10] Averments on information and belief are insufficient. (Evans v. Unkow, supra, 38 Cal.App.4th at pp. 1493, 1497-1498; cf. College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 719 [construing Code Civ. Proc., section 425.13, which requires a motion to amend a complaint to state a punitive damages claim against a health care provider].) As in a motion for summary judgment, the pleadings frame the issues to be decided. (See, e.g., Dorado v. Knudsen Corp. (1980) 103 Cal.App.3d 605, 611.)
The legislative history reveals that the "probability" language was a compromise. A predecessor bill to Senate Bill 1264 was drafted as a pleading bar, requiring plaintiffs to obtain prefiling approval of any lawsuit arising out of a defendant's exercise of First Amendment or petition rights. Governor Deukmejian vetoed that bill. (Wilcox v. Superior Court, supra, 27 Cal.App.3d 809, 820.) Senate Bill 1264 originally contained a burden of proof requiring plaintiff to show a "substantial probability" of prevailing on the merits. In response to opposition to that standard, the bill was amended to the "probability" standard. The Legislature rejected a standard proposed by Governor Wilson: "sufficient evidence upon which a reasonable claim may be based." It is contended that the "probability" standard adopted was intended to require a plaintiff to show a "likelihood" or "51% chance" of prevailing. The "legislative history" cited for this interpretation is a letter from the Governor's office which states that there appeared to be no meaningful distinction between the "substantial probability" standard and the "reasonable probability" standard then being proposed. In criticizing that standard as "fundamentally unfair," the letter stated that it "would require a plaintiff to have 51% of his or her case proven the day the suit is filed and before any discovery is taken." The bill sponsor, Bill Lockyer, objected to the Governor's proposed standard, claiming it would "eviscerate the measure." The Governor signed the legislation with the "probability" standard.
In light of potential problems with the constitutional right to a jury trial, the courts have interpreted the plaintiff's burden in opposing a motion to strike pursuant to section 425.16 as requiring the demonstration of a prima facie case. (Layfayette Morehouse, Inc. v. Chronicle Publishing Co., supra, 37 Cal.App.4th 855, 867.) We are in accord with these authorities.
Therefore, the Church was required to demonstrate by admissible evidence the probability that it would succeed in obtaining an injunction to set aside the former judgment in Wollersheim's favor on the ground of judicial bias during the conduct of the prior action. This it failed to do.
In order to establish the probability of success the Church had to present admissible evidence of judicial bias sufficient to void the judgment in the prior action. Courts applying the former judicial disqualification statute, Code of Civil Procedure section 170, subdivision (a), held that judgments of a disqualified judge were void. A void judgment is open to attack at any time. (Cadenasso v. Bank of Italy (1932) 214 Cal. 562, 567-568.) However, courts applying the new provisions, Code of Civil Procedure section 170, et seq., adopted in 1984, consider such judgments or orders merely voidable. (Betz v. Pankow (1993) 16 Cal.App.4th 931, 939-940, and cases cited therein.)
Section 170.1, subdivision (a)(6) provides for the disqualification of a judge if "For any reason . . . (B) the judge believes there is a substantial doubt as to his or her capacity to be impartial, or (C) a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. Bias or prejudice towards a lawyer in the proceeding may be grounds for disqualification."
"The matter of disqualification should be raised when the facts constituting the grounds for disqualification are first discovered and, in any event, before the matter involved is submitted for decision. (Baker v. Civil Service Com. (1975) 52 Cal.App.3d 590 , 594 [].) This rule applies, however, only when the facts constituting the disqualification are discovered before a case is submitted for decision. The rule rests on the principle that a party may not gamble on a favorable decision. (Ibid.) . . . [C]ase law recognizes situations in which a party is entitled to relief even though the grounds for disqualification are not discovered until after judgment is entered. In such case, a statement of disqualification is timely if submitted at the 'earliest practicable opportunity' after the disqualifying facts are discovered." (Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 424-425 [summary judgment granted by disqualified judge held to be voidable] review den.) [FN 11]
In making our determination whether the Church has established a probability that it would prevail, we now consider "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based," (section 425.16, subd. (b)), as discussed above.
An examination of the Church's complaint reveals an absence of any admissible evidence to demonstrate its claim. The allegations of fact in the complaint which are critical to the Church's claim of judicial bias are not admissible, even though the complaint is verified, because they were not within the personal knowledge of the verifier, the President of the Church. Generally, a party cannot simply rely on the allegations in its own pleadings, even if verified, to make the evidentiary showing required in the summary judgment context or similar motions, such as plaintiff's motion to amend to include a punitive damage claim under section 425.13, subdivision (a). (College Hospital Inc. v. Superior Court, supra, 8 Cal.4th at p. 720, fn. 7.) The same rule applies to motions under section 425.16. Here like motions under 437c, the pleadings merely frame the issues to be decided. Similarly, an averment on information and belief is inadmissible at trial, and thus cannot show a probability of prevailing on the claim. (Evans v. Unkow, supra, 38 Cal.App.4th at pp. 1497-1498.) "An assessment of the probability of prevailing on the claim looks to trial, and the evidence that will be presented at that time. (See Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 824 [].) Such evidence must be admissible. (Id. at p. 830.)" (Id. at p. 1497, original italics.)
Wollersheim made a number of objections to the evidence the Church offered by declarations. Wollersheim's objections to portions of the declaration of Paul Moore on the grounds they were hearsay (Evid. Code, section 1200) and irrelevant (Evid. Code, section 351) are properly sustained. Mr. Moore refers to a statement of juror Terri Reuter, which showed on its face that she did not learn of the allegations concerning the judge's tires being slashed and the death of his dog until long after the verdict. Also Moore's report of her statements regarding statements of court personnel were inadmissible double hearsay. The declaration of Ms. Reuter to which Moore referred was not attached and was reportedly unsigned and never served on Wollersheim's counsel.
Wollersheim also properly objected to the declaration of Eric Lieberman, which consists of his statement about the statements of the reporter, Mr. Horne, regarding the statements made by the judge to Mr. Horne. This is inadmissible double hearsay. (Evid. Code, section 1200.)
Wollersheim objected to the declaration of Earle Cooley as irrelevant. It simply states that the judge never mentioned to Church counsel that his tires had been slashed or that his collie had drowned in his pool, and that the judge did not "reveal his belief or concern" that Church personnel were responsible for acts of harassment. Although Cooley's declaration may have some relevance to the issue of "discovery" of the alleged "new evidence" of bias, it contains no evidence of bias on the part of the judge.
Wollersheim also properly objected to statements in the declaration of Barry Van Sickle on the grounds of hearsay, untrustworthiness and relevancy. The declaration contains hearsay evidence of statements of the judge made six years after the trial in the prior action to one of Wollersheim's appellate counsel. The judge is reported to have said that he was willing to act as a facilitator to settlement as he did not want to see the case retried. These statements are irrelevant to the Church's claim of the existence of judicial bias during the trial itself.
The declaration of William T. Drescher also contains hearsay and multiple hearsay, relaying the statements of Judge Swearinger to him and the statements of Van Sickle regarding the judge's comments to him six years after trial and Wollersheim objected on that basis. The Church contends the statements are admissible under the state-of-mind exception. Wollersheim also objected to these statements as irrelevant to the Church's claim of bias at the time of trial and that objection is sustainable.
The unauthenticated copy of The American Lawyer article does not contain any competent evidence, as it too is multiple hearsay-- the statements of Horne of the statements of Judge Swearinger. Furthermore, the quoted statements of the judge which indicate that he believed "funny stuff" was occurring also indicate he did not "pay attention" to it. Therefore it is irrelevant, as Wollersheim contended.
In opposition to the Church's "evidence," Wollersheim submitted substantial admissible evidence that the jury members had no knowledge that the judge's tires were slashed or that his dog had died. There is evidence by declarations of court personnel that they were unaware of any bias on the part of the judge. Terri Reuter declares that she learned of the tire slashing and dog drowning "sometime well after the trial in the Wollersheim case was over."
Finally, we turn to the issue of the timeliness of the Church's lawsuit to set aside the verdict. An action to void a judgment based on judicial bias is timely if filed at the "'earliest practicable opportunity' after the disqualifying facts are discovered." (Urias v. Harris Farms, Inc., supra, 234 Cal.App.3d at p. 425.) Here the Church also failed in carrying its burden. In its 1986 motion for new trial the Church raised the issue of Judge Swearinger's alleged bias and the possible contamination of the jury by Terri Reuter's unsigned declaration.
The Church's numerous claims of judicial and jury bias and prejudice were adjudicated at earlier stages of the litigation. Yet the Church waited seven years to file the instant lawsuit alleging the same facts to support its complaint. Clearly the Church is too late.
The trial court acted properly in granting Wollersheim's motion to strike the Church's complaint. This conclusion did not require weighing evidence as the Church failed to present a prima facie case supported by admissible evidence. This conclusion also obviates the need to address the various credible, potentially meritorious, defenses of laches, unclean hands and collateral estoppel presented by Wollersheim, except to observe that such defenses are to be considered if necessary in determining plaintiff's probability of success once the plaintiff has presented evidence of the probability of success. (section 425.16, subd. (b).)
4. The award of attorney fees was proper and supported by substantial evidence.
Upon the motion of Wollersheim, the trial court awarded attorney fees pursuant to section 425.16, subdivision (c) in the amount of $130,506.71. In doing so, the trial court rejected Wollersheim's request to double the "lodestar" amount, the number of attorney hours expended multiplied by the hourly rates. (See Serrano v. Priest (1977) 20 Cal.3d 25.) The Church contends the total number of hours claimed was unreasonable and inexplicable, pointing out that the case was dismissed on the basis of pleadings and accompanying declarations.
"'The matter of reasonableness of attorney's fees is within the sound discretion of the trial judge. [Citations.] Determining the weight and credibility of the evidence, especially credibility of witnesses, is the special province of the trier of fact. [Citation.]' [Citation.] 'In determining what constitutes a reasonable compensation for an attorney who has rendered services in connection with a legal proceeding, the court may and should consider "the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney's efforts, his learning, his age, and his experience in the particular type of work demanded . . . ; the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed." [Citations.]' [Citations.]" (Stokus v. Marsh (1990) 217 Cal.App.3d 647, 656-657.)
We find the trial court did not abuse its discretion in awarding attorney fees and that substantial evidence supports the award. Wollersheim's counsel submitted declarations of their experience and expertise providing information supportive of the rates charged by counsel as well as itemized accountings of attorney time. Wollersheim also submitted the declaration of an expert on attorney fees who opined that the rates requested by his counsel were "well within the range of market rates charged by attorneys of equivalent experience, skill and expertise." The Church has not presented any evidence in the record that the award was based upon unnecessary or duplicative work or any other improper basis.
5. Wollersheim is entitled to an award of attorney fees on appeal.
Wollersheim has asked this court to award him attorney fees on this appeal. Subdivision (c) of section 425.16 provides for an award of attorney fees to the defendant who successfully brings a motion to strike.
"A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise. (Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927-929 []; Grade-Way Construction Co. v. Golden Eagle Ins. Co. (1993) 13 Cal.App.4th 826, 837-838 [].)" (Evans v. Unkow, supra, 38 Cal.App.4th at pp. 1499-1500.) Section 425.16, subdivision (c) provides that a prevailing defendant is entitled to recover attorney fees and costs, and does not preclude recovery on appeal. (Id. at p. 1500.)
Wollersheim is awarded his attorney fees on this appeal, the amount of which is to be determined by the trial court upon remand.
Judgment of dismissal and judgment awarding attorney fees are affirmed. Wollersheim is awarded costs and attorney fees on appeal. The matter is remanded to the trial court to determine the amount thereof.
KLEIN, P.J. and CROSKEY, J., concurring.