In this appeal, the plaintiff challenges the determination of the trial court that plaintiffs suit is what is commonly known as a SLAPP suit (Strategic Lawsuit Against Public Participation [Code Civ. Proc, § 425.16 ("section 425.16")]). Based on such determination, the trial court struck the plaintiffs complaint and dismissed the suit when the plaintiff failed to establish a probability of success on his claims. Thereafter, the defendants, who are Ricki Hanyecz, Michael Hanyecz, and Sima Katzir, moved for an award of attorney's fees and costs. The court granted defendants' motion, and the plaintiff challenges that ruling as well.
We find the trial court erred when it (1) ruled this is a SLAPP suit, and then (2) required plaintiff, upon pain of dismissal, to demonstrate the probability of the suit's success. We reach this conclusion because the record demonstrates the defendants were not engaged in a valid exercise of their constitutional rights of freedom of
BACKGROUND OF THE CASE
1. The Complaint
Plaintiffs complaint alleged he was elected to the Laguna Niguel City Council in 1989. In 1994, Paul for Council was the official committee acting on plaintiffs behalf in his bid for another term on the council. The thrust of the complaint is that defendants interfered with plaintiffs candidacy by influencing the election with illegal campaign contributions for one of his opponents. Plaintiff alleged that defendants' acts violated the Political Reform Act of 1974 (Gov.Code, § 81000 et seq., ["the Political Reform Act"]).
2. Defendants' Motion to Strike
Defendants moved to strike the complaint, citing section 425.16, the anti-SLAPP statute, as their authority to do so.
In his opposition to defendants' motion to strike his complaint, plaintiff asserted that section 425.16 does not apply in this case because defendants' actions in laundering campaign money do not constitute constitutionally protected activity. As for
Defendants disputed plaintiffs analysis of what prompts application of section 425.16 protection. They contended their campaign contribution laundering "need not be constitutionally protected for the anti-SLAPP statute to apply; [rather, their] actions merely must arise from an act in furtherance of defendants' rights of free speech or petition."
In granting defendants' special motion to strike, the trial court ruled that defendants' acts which prompted this suit "were, by definition, acts in furtherance of defendants' constitutional rights of free speech. Political contributions are at the very core of First Amendment activity, . . . This is a SLAPP suit." The court also ruled that because plaintiff had not shown he has a reasonable probability of prevailing on any of his causes of action, judgment should be entered in defendants' favor. Thereafter, judgment was so entered, the complaint was dismissed, and defendants were awarded section 425.16 attorney's fees and costs. Plaintiff has now prosecuted this timely appeal.
ISSUES ON APPEAL
In this appeal we address the question as to whether a defendant can properly claim that an action filed against it is a SLAPP suit for which it is entitled to section 425.16 protection, when its conduct involved actions which violate the law; or to put it another way, can a defendant successfully assert that although the acts in which it engaged, and which are the subject of the plaintiffs complaint, were illegal, they were done in furtherance of the constitutional rights of free speech or petition for redress of grievances in connection with a public issue and therefore the plaintiff is required, under section 425.16, to meet the predicate showing mandated by that statute?
As we explain, we hold that in such circumstances, defendants are not entitled to protection under section 425.16. Therefore, in the instant case, the trial court erred when it (1) required plaintiff to establish a probability that he would prevail in this suit, (2) struck the complaint and dismissed the suit when plaintiff failed to do so, and (3) awarded defendants attorney's fees and costs of suit.
We also consider the process that a trial court uses in determining whether a defendant who brings a section 425.16 special motion to strike has successfully met its burden of showing that the acts upon which the plaintiff bases its causes of action were ones taken by the defendant in furtherance of the defendant's rights of petition or free speech in connection with a public issue.
Finally, we address plaintiffs assertions that he is entitled to have defendants pay
1. The Underlying Legislative Purpose of Section 425.16, and the Nature of a SLAPP suit
The Legislature's stated purpose in enacting section 425.16 is found in subdivision (a) of that statute. Subdivision (a) states: "The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly." (Italics added.)
"SLAPP plaintiffs do not intend to win their suits; rather, they are filed solely for delay and distraction [citation], and to punish activists by imposing litigation costs on them for exercising their constitutional right to speak and petition the government for redress of grievances. [Citation.]" (Dixon v. Superior Court (1994) 30 Cal.App.4th 733, 741, 36 Cal.Rptr.2d 687.) SLAPP suits are filed to prevent citizens from exercising their political rights, and to harm those who have exercised those rights. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, 33 Cal.Rptr.2d 446 ["Wilcox"].) "SLAPP suits are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff. [Citations.]" (Id. at p. 816, 33 Cal.Rptr.2d 446, italics omitted.) "As long as the defendant is forced to devote its time, energy and financial resources to combating the lawsuit its ability to combat the plaintiff in the political arena is substantially diminished. [Citations.]" (Ibid.) Therefore, the anti-SLAPP legislation found in section 425.16 provides an efficient means of dispatching, early on in a lawsuit, a plaintiffs meritless claims, and thus encourages, to use the Legislature's words, "continued participation in matters of public significance." (§ 425.16, subd. (a).)
2. Burdens of the Parties in a Section 425.16 Motion to Dismiss
Section 425.16, subdivision (b)(1), requires the trial court to engage in a two-step process when determining whether a defendant's section 425.16 motion to strike should be granted. First, the court decides whether the defendant has made a threshold prima facie showing that defendant's acts, of which the plaintiff complains, were ones taken in furtherance of the defendant's constitutional rights of petition or free speech in connection with a public issue. (Wilcox, supra, 27 Cal. App.4th at p. 820, 33 Cal.Rptr.2d 446.) If the court finds that such a showing has been made, then the plaintiff will be required to demonstrate that "there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1); DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567-568, 92 Cal.Rptr.2d 755.)
Subdivision (b)(2) of section 425.16 states that when the trial court is considering a special motion to strike, the court "shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." This requirement has been interpreted to mean that (I) when the trial court examines the plaintiffs affidavits filed in support of the plaintiffs "second step" burden, the court must consider whether the plaintiff has presented sufficient evidence to establish a prima facie case on its causes of action, and (2) when the trial court considers the defendant's opposing affidavits, the court cannot weigh them against the plaintiffs affidavits, but must only decide whether defendant's affidavits, as a matter of law, defeat plaintiffs supporting evidence. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 866-867, 44 Cal.Rptr.2d 46.)
To meet its burden, the defendant does not have to "establish its actions are constitutionally protected under the First Amendment as a matter of law. If this were so the second clause of subdivision (b) of section 425.16 would be superfluous because by definition the plaintiff could not prevail on its claim." (Wilcox, supra, 27 Cal.App.4th at p. 820, 33 Cal.Rptr.2d 446, italics added.) Rather, the defendant must present a prima facie showing that the plaintiffs causes of action arise from acts of the defendant taken to further the defendant's rights of free speech or petition in connection with a public issue. (Ibid.) Only if the defendant makes this prima facie showing does the trial court consider the second step of the section 425.16, subdivision (b)(1) analysis; at that point, the burden shifts to the plaintiff to make a prima facie showing of facts which, if proven at trial, would support a judgment in the plaintiff's favor. (Id., at pp. 823-824, 33 Cal.Rptr.2d 446.)
In the instant case, we need not address the second step of section 425.16's two-step motion to strike process because we hold, as a matter of law, that defendants cannot meet their burden on the first step. As discussed belowT, the activity of which plaintiff complains—defendants' campaign money laundering—was not a valid activity undertaken by defendants in furtherance of their constitutional right free speech. This conclusion is established by the factual record before us and is not really disputed by the defendants. Indeed, defendants argue that they are entitled to the benefit of section 425.16 in spite of such illegality.
3. Defendants' Campaign Money Laundering Conduct Does Not Fall Within the Coverage of Section 425.16
The making of a political campaign contribution is a type of political speech. "A contribution serves as a general expression of support for the candidate and his views, . . ." (Buckley v. Valeo (1976) 424 U.S. 1, 21, 96 S.Ct. 612, 635, 46 L.Ed.2d 659, 689, limited on another point in Ryder v. United States (1995) 515 U.S. 177, 183-184, 115 S.Ct. 2031, 2036, 132 L.Ed.2d 136, 144.) Defendants contend their campaign money laundering activity was taken "in furtherance" of their constitutional right of free speech, and therefore such activity comes within the parameters of section 425.16's protection, even though such activity was found to be illegal. We do not agree with their conclusion.
Subdivision (a) of section 425.16, which is the preamble of that statute, states that the statute was enacted to combat suits brought primarily to chill the valid exercise of a defendant's constitutional rights of speech and petition. It is true that "`legislative intent is not gleaned solely from the preamble of a statute; it is gleaned from the statute as a whole, which includes the particular directives.' [Citation.]"
In Wilcox, supra, 27 Cal.App.4th at p. 820, 33 Cal.Rptr.2d 446, the court gave an example of how conduct may touch on an issue of free speech but not be protected under section 425.16. The court stated that if a defendant who brings a section 425.16 motion to strike shows that the act which prompted the suit against him was his own suit against a developer, "the defendant would have a prima facie First Amendment defense. [Citation.] But, if the defendant's act was burning down the developer's office as a political protest the defendant's motion to strike could be summarily denied without putting the developer to the burden of establishing the probability of success on the merits in a tort suit against defendant." While laundering campaign contributions may not be as dramatic or physically dangerous as burning down a building, it is equally outside the scope of section 425.16's protection.
Because defendants have not shown that plaintiffs suit was brought primarily to chill a valid exercise of their constitutional rights of free speech or petition for redress of grievances in connection with a public issue, plaintiff had no obligation to establish a probability that he will prevail on his causes of action, and the trial court was therefore required to deny defendants' motion to strike plaintiffs causes of action.
In order to avoid any misunderstanding as to the basis for our conclusions, we should make one further point. This case, as we have emphasized, involves a factual context in which the defendants have effectively conceded the illegal nature of their election campaign finance activities for which they claim constitutional protection. Thus, there was no dispute on the point and we have concluded, as a matter of law, that such activities are not a valid exercise of constitutional rights as contemplated by section 425.16. However, had there been a factual dispute as to the legality of defendants' actions, then we could not so easily have disposed of defendants' motion.
As we have noted, a defendant need only make a prima facie showing that the plaintiffs suit arises "from any act of [defendant] in furtherance of [defendant's] right of petition or free speech under the United States or California Constitution in connection with a public issue." (§ 425.16, subd. (b)(1).) If the plaintiff contests this point, and unlike the case here, cannot demonstrate as a matter of law that the defendant's acts do not fall under section 425.16's protection, then the claimed illegitimacy
14. The Matter of the Parties' Litigation Costs
Subdivision (c) of section 425.16 awards attorney's fees and costs to defendants who prevail on special motions to strike. Because we have determined defendants should not have prevailed on their motion to strike, it follows that they are not entitled to the fees and costs the trial court awarded them. Moreover, if upon remand of this case the trial court determines that defendants' motion to strike was frivolous or.was solely intended to cause unnecessary delay, the trial court shall award plaintiff his trial court costs pursuant to Section 128.5 of the Code of Civil Procedure. (§ 425.16, subd. (c).)
Plaintiff requests an award of attorney's fees and costs incurred by him in this appeal. If a statute authorizes an award of attorney's fees at the trial court level, then appellate attorney's fees are also recoverable unless the statute specifically provides otherwise. (Liu v. Moore (1999) 69 Cal.App.4th 745, 754, 81 Cal.Rptr.2d 807.) Section 425.16 does not specifically preclude recovery of attorney's fees in appeals involving review of section 425.16 motions to strike. However, as noted above, under section 425.16, a plaintiff may only receive trial court attorney's fees under qualified conditions. Therefore, if plaintiff convinces the trial court that such conditions exist in this case, the trial court should award plaintiff reasonable appellate attorney's fees. In any event, as the prevailing party in this appeal, plaintiff is entitled to his appellate costs under rule 26 of the California Rules Court.
The judgment of dismissal and the order awarding attorney's fees are reversed in their entirety, and the cause is remanded for further proceedings consistent with the views expressed herein. Costs on appeal to plaintiff.
KITCHING, J., and PERLUSS, J.
Just as a trial court would do if defendants had demurred to the complaint on the ground of uncertainly as to the identity of the actual plaintiff, we will "give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) In doing so, it is clear that the statements and allegations summarized above would be meaningless if they were not construed to mean that the candidate himself, Christiansen, is the actual plaintiff. Code of Civil Procedure, section 367 requires that suits be "prosecuted in the name of the real party in interest, except as otherwise provided by statute." The real party in interest is the person who, under the substantive law, possesses the right sued upon. (Gantman v. United Pacific Ins. Co. (1991) 232 Cal.App.3d 1560, 1566, 284 Cal.Rptr. 188.) Obviously, Christiansen's political action committee itself can have no cause of action for infliction of emotional distress, interference with Christiansen's employee benefits, or relief under Civil Code section 52.1. In this opinion, therefore, we use the term "plaintiff" to mean Christiansen himself, not his political action committee. On remand of this case, Christiansen can amend the complaint to name himself as the plaintiff. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004, 79 Cal.Rptr.2d 544 et seq.)
"(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (Italics added.)
Subdivision (e) of section 425.16 states: "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 (l) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest."