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Church of Scientology v. Wollersheim
Cite as: 42 Cal.App.4th 628, 49 Cal.Rptr.2d 620
CHURCH OF SCIENTOLOGY OF CALIFORNIA, Plaintiff and Appellant,
v.
LAWRENCE WOLLERSHEIM, Defendant and Respondent.
Nos. B084686; B086063
California Court of Appeals, Second District, Division Three
Superior Court No. BC074815
Appeals from judgments of the Superior Court of Los Angeles County. Hon.
Edward
Kakita, Judge. Judgments affirmed and remanded with direction.
COUNSEL
Eric M. Lieberman, Michael Ludwig, Rabinowitz, Boudin, Standard, Krinsky
&
Lieberman, Kendrick L. Moxon, Laurie J. Bartilson, and Moxon & Bartilson,
for Plaintiff and Appellant.
Hagenbaugh & Murphy, Daniel A. Leipold and Mark Goldowitz for Defendant and
Respondent.
Gray, Cary, Ware & Freidenrich and Guylyn R. Cummins as Amici Curiae.
John C. Barker as Amicus Curiae.
Parker, Chapin, Flattau & Klimpl and Herbert L. Rosedale as Amici Curiae.
Elizabeth Pritzker as Amicus Curiae.
Filed February 1, 1996
ALDRICH, J.:
INTRODUCTION
Plaintiff and appellant Church of Scientology (the Church) appeals from the
order
of the trial court granting the motion of defendant and respondent Lawrence
Wollersheim
(Wollersheim) pursuant to Code of Civil Procedure section 425.16 (hereinafter,
section 425.16) to dismiss the Church's complaint against him. The dismissed
complaint
attacked the judgment Wollersheim had obtained against the Church in a prior
action
(the prior action).[FN 1] Section 425.16 was adopted in 1992 to deter and
prevent
so-called SLAPP (Strategic Lawsuit Against Public Participation) suits.
FN1. Wollersheim v. Church of Scientology (1989) 212 Cal.App.3d 872.
The Church contends the trial court erred in granting the motion because its
action
against Wollersheim is not a SLAPP suit as defined by section 425.16. The Church
also contends the Church demonstrated the probability of the success of its
complaint
and therefore the motion should have been denied in any event. Furthermore, the
Church contends, the amount awarded for attorney fees was excessive.
We find the motion to dismiss was properly granted and substantial evidence
supports the award of attorney fees. We therefore affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
The Prior Action
The procedural history of this litigation spans more than 15 years.
Wollersheim
filed his original action against the Church on July 28, 1980. Wollersheim, a
former member of the Church, had alleged the Church intentionally and
negligently
inflicted severe emotional injury on him through certain practices, including
"auditing," "disconnect," and "fair game."
During the pendency of that lawsuit Scientology affiliates (Scientology) sued
Wollersheim, his counsel, and his expert witnesses in the prior action in a RICO
action in the Federal District Court in Los Angeles. Thereafter Scientology
petitioned
the Ninth Circuit Court of Appeals to disqualify the entire United States
District
Court for the Central District of California. In an unprecedented ruling the
Ninth
Circuit struck the motion from its records. Thereafter the RICO action was
dismissed
by the court. Scientology once again appealed to the Ninth Circuit Court of
Appeals
which affirmed the dismissal. (Religious Technology Center v. Wollersheim (9th
Cir. 1992) 971 F.2d 364; cert. den. (1987) 479 U.S. 1103.)
In March 1986, Judge Ronald Swearinger, the superior court judge assigned as
the trial judge in the prior action, ordered the Church to produce its "
auditing"
and "pre-clear" files on Wollersheim. Thereafter the Church sued
Judges
Alfred Margolis (who had made previous pretrial rulings in the case) and
Swearinger
and the entire Los Angeles Superior Court in Federal District Court. (Church of
Scientology v. Superior Court, CV 86-1362ER.) This suit was dismissed by the
court
in November 1986.
After much discovery and several petitions for writs of mandate to the Court
of Appeal brought by the Church, the prior action went to trial in superior
court
on February 18, 1986, before Judge Swearinger. After five months of trial the
jury returned its verdict in favor of Wollersheim on July 22, 1986. It assessed
compensatory damages in the sum of $5 million and punitive damages in the sum
of $25 million against the Church. On August 8, 1986, the Church filed its
motion
for new trial and for judgment notwithstanding the verdict both of which were
denied on September 18, 1986 after three days of oral argument. The Church
thereafter
appealed to the Second District Court of Appeal which reversed as to the cause
of action for negligent infliction of emotional injury, affirmed the judgment
as to the cause of action for intentional infliction of emotional injury and
modified
the judgment to reduce the compensatory damages to $500,000 and the punitive
damages
to $2 million. (Wollersheim v. Church of Scientology (1989) 212 Cal.App.3d 872.)
The Church then petitioned the California Supreme Court for review which was
denied.
Upon the Church's petition for a writ of certiorari, the United States Supreme
Court vacated the judgment of the Court of Appeal and remanded to that court for
reconsideration in light of the Supreme Court's ruling in Pacific Mutual Life
Insurance Co. v. Haslip (1991) 499 U.S. 1, 11 S.Ct. 1032. (Church of Scientology
of California v. Wollersheim (1991) 499 U.S. 914, 111 S.Ct. 1298.)
On remand the Court of Appeal adhered to its original decision, affirming the
judgment subject to a remittitur. (Wollersheim v. Church of Scientology (1992)
15 Cal.App.4th 1426.) Once again the Church petitioned the California Supreme
Court for review and on July 23, 1992, review was granted. However, on July 15,
1993, following the United States Supreme Court's decision in TXO Production
Corp.
v. Alliance Resource Corp. (1993) ___ U.S. ___, 125 L.Ed.2d 366, 113 S.Ct. 2711,
it dismissed its prior grant of review. The Church's subsequent petition for
writ
of certiorari to the United States Supreme Court was denied on March 7, 1994.
The Instant Litigation
While its appeal in the prior action was pending before the California
Supreme
Court, the Church filed this action on February 16, 1993, seeking to set aside
the judgment Wollersheim had obtained against the Church on July 22, 1986. The
complaint alleged that newly discovered evidence demonstrated that the trial
judge
appeared to, or did, harbor actual malice and prejudice against the Church at
the time of the trial and may have conveyed prejudicial information to the jury,
either directly or indirectly.
The "newly discovered evidence" alleged in the complaint consisted
of the following: Post-trial interviews with jurors by the Church's attorneys
revealed that "the jurors 'believed' that they were being followed by
members
of the [Church]." Juror Terri Reuter stated that "the jury had been
told by 'unnamed court personnel,' whom she refused to identify, that during the
trial, Judge Swearinger's tires had been slashed, and that his dog had been
found
dead. She said that the jurors attributed these actions to unknown and unnamed
members of the [Church]." The complaint stated that Church counsel
suspected
that private investigators hired by Wollersheim's counsel "were responsible
for 'dirty tricks' designed to implicate the Church, and prejudice the
jury."
Additionally, the complaint alleged that, because Judge Swearinger refused
"to
allow[] discovery into the jurors in order to establish the extent and source
of the taint," "[t]he source of the jury's bias thus remained a
mystery
for five years."
The complaint continued, "Finally, in an interview with William W.
Horne,
a reporter employed by The American Lawyer magazine which took place in 1992,
Judge Swearinger revealed that he maintained a condition of mind of unfavorable
bias against the Church during the trial of the Prior Action. According to
Horne,
Judge Swearinger stated that his dog had drowned in the family swimming pool
during
the trial of the Prior Action, and that the judge believed that he had been
followed
when in his car throughout the trial. The judge informed Horne that, while he
was in possession of no evidence to corroborate the suspicions he harbored, he
nonetheless felt that members of the Church of Scientology were responsible for
such actions." On March 19, 1992, Horne revealed Judge Swearinger's
statements
to the Church's attorneys Eric M. Lieberman and Jonathan Lubell. "For the
first time, the Church and its attorneys suspected that the source of infection
of the jury was the judge himself."
The complaint continued, alleging Horne provided further details of the
judge's
statements to the Church's attorney, Michael L. Hertsberg, on March 23, 1992.
Horne allegedly stated the judge told him the judge's veterinarian told him the
dog was old and had died of a heart attack, yet the judge still felt the dog had
fallen or been pushed into the pool. Also, Horne stated the judge had said he
felt the Church was somehow responsible for the dog's death. The judge also told
Horne that he had been followed "a few times" in his car during the
trial and he had assumed the Church was responsible for these actions.
Horne's article in the July/August 1992 issue of The American Lawyer quoted
Judge Swearinger as saying:
"'I was followed [at various times] throughout the trial . . . and
during
motions for a new trial . . . . All kinds of things were done to intimidate me,
and there were a number of unusual occurrences during that trial. My car tires
were slashed. My collie drowned in my pool. But there was nothing overtly
threatening,
and I didn't pay any attention to the funny stuff.'"
Upon information and belief, the Church alleged that the judge described these
incidents to court personnel during the trial and that court personnel revealed
them to the jurors, "resulting in a jury as biased as the judge."
The complaint referred to other occasions in which the judge made statements
to others regarding the Church. In April 1992, during a chamber's conference in
an unrelated case, Judge Swearinger stated to Wollersheim's appellate lawyer
"that
he believed the award of damages . . . was excessive but that he had
deliberately
chosen to allow the excessive verdict to stand because of his displeasure with
the Church and its trial counsel." The judge referred to the Church's
counsel,
Earl Cooley, as Earl "Fooley," "because Mr. Cooley had alleged
that there had been tampering with the jury." Judge Swearinger allegedly
repeated the substance of this discourse in a telephone conversation with Church
counsel: he stated he did not reduce the jury's damage award "because such
an action would have given credibility to Mr. 'Fooley's' charge that the jury
was tainted." These comments, the complaint alleged, revealed the judge
possessed
unfounded suspicions and unfavorable beliefs regarding the Church and that he
"improperly permitted entry of a judgment he knew to be outrageous, and the
result of bias and prejudice, in order to conceal that he, himself, was the
source
of the jury's bias and prejudice." The Church alleged it was recently
apprised
of this information and prayed the judgment be declared null and void. The
complaint
was verified by James Morrow, President of the Church of Scientology California.
Wollersheim filed a special motion to strike pursuant to section 425.16,
arguing
that such a motion was authorized by that provision and that the Church could
not demonstrate a probability that it would prevail on its claims. The motion,
as subsequently amended, presented a number of contentions: (1) the court had
no jurisdiction over the action because the main action was pending before the
California Supreme Court; (2) the court had no jurisdiction because the action
was "merely a disguised attempt" to bring an untimely motion for a new
trial; (3) the action was barred because the Church had not exercised due
diligence
in raising its claims; (4) the Church did not plead and could not show that it
has a meritorious defense to the main action; (5) the complaint is not
sufficient
to set aside the judgment because it alleges at most intrinsic fraud; (6) the
Church could not demonstrate a probability that it would prevail on its claim;
(7) the Church could not demonstrate a probability that it could prove key facts
which were alleged in the complaint; (8) the action is part of the Church's
litigation
strategy to use the courts to harass opponents; (9) the action was part of the
Church's litigation strategy of attacking judges who rule against them as
biased;
and (10) the Church has unclean hands and is not entitled to the equitable
relief
sought. Wollersheim argued that the Church could not meet his affirmative
defenses:
laches, unclean hands and collateral estoppel.
In support of his motion, Wollersheim submitted the following: Charles B.
O'Reilly,
the lead counsel for Wollersheim at trial and on the initial appeal, declared
that Judge Alfred Margolis ruled on the Church's pre-trial motions in the main
action which sought to preclude any reference to the Church's "
auditing"
of Wollersheim. When the motions were denied, two affiliates of the Church,
Religious
Technology Center (RTC) and the Church of Scientology International (CSI), filed
"a so-called RICO action" in the United States District Court for the
Central District of California against Wollersheim, his two designated experts,
and his counsel, including O'Reilly, "seeking basically the same relief
that
had been denied by Judge Margolis." A Special Master determined the action
to be "not only frivolous but bordering on malicious," and accordingly
the action was dismissed by the judge of the District Court, the dismissal
affirmed
on appeal in Religious Technology Center v. Wollersheim (9th Cir. 1992) 971 F.2d
364.) While the RICO action was still pending, the Church, RTC, and/or CSI filed
a motion/petition in the Ninth Circuit seeking to disqualify the entire U.S.
District
Court for the Central District of California on the ground of bias and prejudice
against the Church. The motion/petition was ordered stricken from the record by
the Ninth Circuit.
O'Reilly declared that, due to his calendar, Judge Margolis withdrew from the
main action. The Church moved to disqualify the entire Los Angeles Superior
Court
and/or to transfer the action to another county on the ground the entire court
was biased. The motion was denied as well as the Church's writ petition to the
Court of Appeal. The case was assigned to Judge Lopez and the Church filed a
Code
of Civil Procedure section 170.6 motion to disqualify him. The action was
assigned
to Judge Swearinger for trial. After ruling the Church was required to produce
its auditing file, the Church filed an action in U.S. District Court against the
judge and others claiming bias and prejudice. This federal case was dismissed.
(Church of Scientology v. Superior Court (U.S.D.C. C.D. Cal.) CV 86-1362.) Later
after the judge denied the Church's motion for non-suit on the intentional
infliction
of emotional distress cause of action, the Church filed a formal motion to
disqualify
him for cause, bias and prejudice, which was denied.
Wollersheim declared that he had liquidated all of his assets, personally
spent
about $300,000, and gone more than $900,000 into debt, not including attorney
fees, during the litigation of the main action and related litigation, over an
11 year period.
Andre A. Anderson, the jury foreperson in the prior action, declared that
"from
the start of the trial up through the return of the verdict, there was no
reference
to nor comment, by any juror or by any other person in my presence, about the
trial judge, the Honorable Ronald Swearinger, to the effect that his tires had
been slashed, or that his dog had died, or that he was being followed or in any
other way harassed or bothered by Scientology." Antoinette Saldana, one of
the court bailiffs present during the trial, declared that she, "as well
as all court personnel, took precautions to ensure that no one discussed the
case
with members of the jury or with anyone outside the courtroom." Also, she
declared that she was never aware of any unfavorable beliefs or biases held by
the judge against the Church, and the judge never mentioned any strange
occurrences
for which he suspected the Church was or might be responsible. He did not
mention
that his tires were slashed. He mentioned his dog had died but never suggested
the Church might be responsible for the dog's death.
Declarations of
former members and officials of the
Church, Gerald Armstrong and Vicki Aznaran, revealed the practices and policies
of the Church, including its "fair game" doctrine and employment of
litigation practices designed "to bludgeon the opposition into submission,
"
as well as attacks against judges who rule against it. The declaration of an
attorney
who had represented the Church (Joseph A. Yanny), submitted in an action brought
by the Church against him and others, related aspects of the Church's "fair
game" doctrine, including copies of exhibits to demonstrate "the Cult,
according to written policy, will use any means legal or illegal to subvert and
frustrate judicial process against them, and will willingly and knowingly abuse
judicial process in order to attack perceived 'enemies.'"
The Church opposed Wollersheim's motion to strike and requested sanctions
against
Wollersheim and his attorneys. The Church contended Wollersheim's free speech
and petition rights were not the subject of the complaint. The Church argued
that
even if section 425.16 applied, the Church could establish the probability that
it would prevail.
To demonstrate that the Church could meet its burden of proof (which the
Church
contended was the production of "evidence demonstrating the existence of
a material factual issue as to its claim . . ."), the Church submitted the
declaration of counsel, Paul F. Moore II, which had been submitted in support
of the Church's application for a new trial in the prior action. Moore had
declared
that on August 18, 1986, Terri Reuter confirmed that the facts discussed in an
"attached declaration" were true but she said she would not sign any
declaration because she did not want to do anything to jeopardize the verdict.
Ms. Reuter told him, he declared, that she knew that she and other members of
the jury were being followed but she could not prove it and that within the last
week she was told by some court personnel that the judge's tires had been
slashed
and his dog had been found dead. "This was told to me in conjunction with
our conversations about the trial and in particular in relation to Defendant's
alleged practice of 'Fair Game.'" There was no declaration of Terri Reuter
attached to Moore's declaration submitted in this action.
The Church also submitted the declaration of Eric M. Lieberman. Lieberman
declared
he had been interviewed on March 10, 1992, by William Horne, a reporter for The
American Lawyer and Horne told Jonathan Lubell and him that Judge Swearinger had
told Horne he believed the Church had attempted to harass him during the course
of the trial. The Church also submitted an unauthenticated copy of The American
Lawyer article by Horne, entitled "The Two Faces of Scientology," in
which Judge Swearinger is quoted.[FN2]
[FN2] The article states: "California superior court judge Ronald
Swearinger,
who presided over the Wollersheim trial, describes the case itself as anything
but normal: Church trial lawyer Cooley and his co-counsel, the late John
Peterson,
filed a number of unsuccessful 'writs and motions' throughout the trial in an
attempt to halt it, according to Judge Swearinger. Three days into the trial,
the judge says, they moved for his disqualification based on 'some secret
conversation
I'd had with someone I'd never heard of.' They also filed a Section 1983 federal
civil rights action against both him and the judge who sat on the case prior to
him, says Swearinger, on the theory that by allowing the case to go to trial,
the judges were denying the church its civil rights. (Cooley confirms that the
Section 1983 action and the disqualification motion were filed.) [para.] But
Swearinger's
recollections of the oddities of the Wollersheim case go beyond court filings:
'I was followed [at various times] throughout the trial . . . and during the
motions
for a new trial,' the judge claims. 'All kinds of things were done to intimidate
me, and there were a number of unusual occurrences during that trial. My car
tires
were slashed. My collie drowned in my pool. But there was nothing overtly
threatening,
and I didn't pay attention to the funny stuff.'" (William W. Horne, The
American
Lawyer, "The Two Faces of Scientology" (July, August 1992) 75, 77,
78.)
"At the trial Scientologists packed the courtroom and hallways of the
courthouse
and regularly interrupted the proceedings by protesting against alleged
religious
discrimination. [para.] 'I'd let the jury out, let the [protesters] blab on, and
then let the jury back in,' says Judge Swearinger. 'It didn't bother me.'
Swearinger
says he thought Cooley's histrionics were 'comical' rather than effective, and
that he often caught the jury 'rolling their eyes' at Cooley's 'loud talk and
hostility to opposing counsel and witnesses.' The jury returned a $30 million
verdict in July 1986; $5 million in compensatory damages and $25 million in
punitives."
(Id. at p. 78.)
In addition, Barry Van Sickle, who represented Wollersheim in his defense of the
appeal in the prior action, declared that on April 6, 1992, Judge Swearinger
expressed
an interest in acting as a "facilitator" in resolving the Wollersheim
matter, now that the Court of Appeal had issued its opinion. On the judge's
request,
Van Sickle contacted the Church's counsel in charge of settlement matters, Mr.
Drescher. Drescher declared he spoke on the telephone with Judge Swearinger a
day or two later, and the judge stated that at the time of new trial motions he
considered the jury award should have been reduced in the fashion that the Court
of Appeal did, but that he did not do this because he was upset with Church
counsel,
whom Judge Swearinger called "Fooley." "In particular, Judge
Swearinger
told me that he was angered by Mr. Cooley arguing to the Court before a packed
gallery, including media, that the jury had been 'in the tank' and that there
was no way that he would reduce that verdict after Mr. Cooley had raised those
allegations for fear of validating them."
The trial court stayed the proceedings, including discovery, pending a final
ruling by the California Supreme Court on the petition for review of the prior
action by the Church. On July 15, 1993, the California Supreme Court dismissed
the petition and remanded to Division Seven of the Second Appellate District.
Wollersheim reset his motion after the remittitur was issued and the opinion of
the Court of Appeal became final.
The parties submitted additional argument and documentation. Wollersheim
submitted
the declaration of Steven Fishman, on parole for a conviction of mail fraud. He
was a former member who had been sued by the Church. Fishman declared that in
the late summer or early fall of 1986 another Scientologist told him that he had
drowned a dog named "Duke" that belonged to a Judge Swearinger.
Fishman
also declared that, as part of "Operation Wolly" he had been ordered
to call up jurors in the Wollersheim case in the middle of the night and hang
up on them. He relayed details of his involvement in raiding the trash dumpster
of the law office of Charles O'Reilly. He also reported that an "
agent"
had been assigned to work in O'Reilly's law office as a
typist/clerk/receptionist,
to copy legal briefs and to influence O'Reilly into forcing Wollersheim to
accept
a settlement from the Church.
Wollersheim's counsel, Mark Goldowitz, declared that he had actively
participated
in the enactment of the anti-SLAPP legislation. He traced the legislative
history
of Senate Bill 1264 of 1992, which he contended demonstrated the intent to cover
all lawsuits and other lawsuit-related communications as petition activity.
The Church disputed Wollersheim's interpretation of the applicability of
section
425.16. The Church attacked the credibility of Fishman, submitting declarations
containing statements which contradicted Fishman's. In reply, Wollersheim
submitted
a supplemental declaration of Fishman, accusing the persons who said the
statements
in his declaration were false of lying.
On March 30, 1994, the trial court granted the motion to strike the complaint
"for the reasons set forth in Defendant's moving papers," and
dismissed
the action with prejudice.
The Church appealed. Thereafter, the trial court granted Wollersheim's motion
for an award of attorney fees, pursuant to subdivision (g) of section 425.16.
The Church appealed from that judgment and the two appeals were consolidated.
ISSUES
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?
DISCUSSION
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]
[FN3] The provisions of section 425.16 were designed to provide an economical
and expeditious remedy to SLAPP suits. The defendant may file a motion to strike
within 60 days of the service of the complaint. Because the motion is heard
within
30 days of the notice of the motion, the plaintiff's case may not be developed.
However, the provision allowing discovery for good cause provides plaintiff a
means to avoid any legitimate prejudice due to the alacrity of the proceedings.
Scientology did not file a motion to conduct additional discovery.
2. The Church's action was properly subjected to a section 425.16 motion to
strike.
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.
FN4. The right to petition is not absolute, providing little or no protection
for baseless litigation or sham or fraudulent actions. Under the statutory
scheme,
a motion to strike cannot be successful unless the plaintiff's action is a
meritless
attempt to interfere with the defendant's exercise of petition activity and it
is shown it lacks merit. Thus section 425.16 protects the defendant from
retaliatory
action for his or her exercise of legitimate petition rights but does not
unconstitutionally
interfere with the plaintiff's own petition rights.
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. [FN5] 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. [FN6]
[FN5] Just prior to oral argument we were informed by counsel for Wollersheim
that on August 21, 1995, Scientology filed still another action against
Wollersheim
in the Federal District Court of Colorado. Wollersheim complains that through
a civil writ of seizure in that action the Church has seized over 600,000
documents
from Wollersheim and has used that lawsuit to conduct discovery as to Judge
Swearinger,
attorney Charles O'Reilly and Daniel Leipold, the trial judge and Wollersheim's
past and present attorneys respectively in the prior action, in violation of the
automatic stay order of section 425.16. The Church objects to our considering
the Colorado lawsuit on the grounds that it is irrelevant to the proceedings
herein.
Inasmuch as we know nothing of the facts underlying that lawsuit we agree with
the Church and decline to consider that lawsuit in this appeal. We will leave
the issue of whether that suit is meritorious to the Colorado courts.
[FN6] 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." [FN7] 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]
[FN7] See, e.g., Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 820,
citing Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d
1118, 1136.) The Bear Stearns court placed limits on the ability to bring a tort
action against persons who brought an action or induced another to bring an
action
against plaintiff. "If any person who induced another to bring a lawsuit
involving a colorable claim could be liable in tort, free access to the courts
could be choked off with an assiduous search for unnamed parties. . . . [I]t
would
defeat the purpose of assuring free access to the courts, and cause a flood of
oppressive derivative litigation, to assess tort liability for their
activities."
(Id. at p. 1136.)
[FN8] 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. [FN9]
[FN9] The Church points to comments in the legislative history and language
from Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, regarding these
particular
aspects of SLAPP suits. For example, in discussing SLAPP suits, Wilcox stated,
"The favored causes of action in SLAPP suits are defamation, various
business
torts such as interference with prospective economic advantage, nuisance and
intentional
infliction of emotion distress. Plaintiffs in these actions typically ask for
damages which would be ruinous to the defendants. [para.] SLAPP suits are
brought
to obtain an economic advantage over the defendant, not to vindicate a legally
cognizable right of the plaintiff." (Id. at p. 816, original italics,
citations
omitted.) Nothing in Wilcox or the statute specifically limits the applicability
of section 425.16 to tort actions only. Furthermore, as Wollersheim correctly
points out, the comments about tort actions are contained in documents which do
not constitute legislative history.
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.
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.). [FN10] 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.)
[FN10] Wollersheim and amici curiae implore this court to apply a heavier
burden
of proof, contending that "probability" means "more likely than
not."
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]
[FN11] Wollersheim's contention that the Church's complaint is an
unsuccessful
attempt to allege either intrinsic or extrinsic fraud is somewhat beside the
point.
Rather the complaint is an attempt to allege the judgment in the underlying
action
is void because the matter was tried before a judge who concealed his bias.
Nevertheless,
the Church failed to successfully plead or present evidence in opposition to
Wollersheim's
motion to support the essential basis for such a claim--facts of Judge
Swearinger's
alleged bias during the trial.
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.
DISPOSITION
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.
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