Soukup v. Hafif

2
Filed 6/30/04 Soukup v. Hafif CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
PEGGY J. SOUKUP,
Plaintiff and Respondent,
v.
HERBERT HAFIF, et al.,
Defendants and Appellants.
B152759 consolidated with B154311
(Los Angeles County
Super. Ct. No. BC247941)
TERRY HUTTON,
Plaintiff and Respondent,
v.
HERBERT HAFIF, et al.,
Defendants and Appellants.
B154184
(Los Angeles County
Super. Ct. No. BC249367)
APPEAL from orders of the Superior Court of Los Angeles County, Gregory
O’Brien, Judge. Reversed with directions.

-- 1 of 9 --

3
Aitken Aitken & Cohn, Darren O. Aitken, Wylie A. Aitken for Defendants and
Appellants Wylie A. Aitken and the Law Offices of Wylie A. Aitken.
Law Offices of Herbert Hafif for Defendants and Appellants Herbert Hafif, the
Law Offices of Herbert Hafif, Cynthia D. Hafif, and Greg K. Hafif.
Cheong, Denove, Rowell & Bennett and John D. Rowell for Plaintiff and
Respondent Terry Hutton.
Peggy J. Soukup in pro. per. for Plaintiff and Respondent Peggy J. Soukup.
I. INTRODUCTION
Defendants, Wylie A. Aitken, the Law Offices of Wylie A. Aitken, the Law
Offices of Herbert Hafif, Herbert Hafif, Cynthia D Hafif, and Greg K. Hafif,1 appeal
from a November 16, 2001, order denying their Code of Civil Procedure section 425.16 2
special motions to strike the abuse of process and malicious prosecution complaint of
plaintiff, Peggy J. Soukup, filed April 2, 2001, in Superior Court case No. BC247941.
Based in material part on our opinion in Soukup v. Stock (May 27, 2004, B154311) __
Cal.App.4th __, __-__ [14 Cal.Rptr.3d 82, 83-89, mod. on den. rehg. 2004 WL
1376385], which arises out of the same superior court case commenced by Ms. Soukup,
we reverse the orders denying the special motions to strike. Additionally, the Hafif
defendants appeal from the November 27, 2001, denial of their special motion to strike
the April 26, 2001, complaint for intentional severe emotional distress infliction filed by
1 For purposes of clarity and not out of any disrespect, Greg K. Hafif will be
referred to as Greg and Herbert Hafif as Mr. Hafif. On some occasions, Mr. Hafif, his
relatives, and his firm will be referred to collectively as the Hafif defendants. Likewise,
Mr. Aitken and his firm will be referred to as the Aitken defendants.
2 All future statutory references are to the Code of Civil Procedure.

-- 2 of 9 --

4
plaintiff, Terry Hutton, in Superior Court case No. BC249367. As in the case of the
appeal involving Ms. Soukup, the November 27, 2001, order denying the special motion
to strike will be reversed. As to both of the cases pursued by Ms. Soukup and Mr.
Hutton, we remand for the trial court to impose attorney fees and costs pursuant to
section 425.16, subdivision (c) in favor of defendants subject to our analysis in Soukup
concerning attorneys appearing in pro se. (Trope v. Katz (1995) 11 Cal.4th 274, 279-
282; Soukup v. Stock, supra, __ Cal.App.4th at pp. __-__ [2004 WL 1376385].)
II. MS. SOUKUP’S LAWSUIT
A. Mr. Aitken And His Firm
The Aitken defendants have been sued by Ms. Soukup in case No. BC247941 for
malicious prosecution and abuse of process arising out of a lawsuit filed against her. The
suit was filed or pursued by the Aitken defendants. The conduct is the same alleged
against a codefendant, Ronald C. Stock. In Soukup v. Stock, supra, __ Cal.App.4th at
pages __through __ [14 Cal.Rptr.3d at pages 86-89], we held that claims against Mr.
Stock arose from the petition rights of his clients and such were within the protective
ambit of section 425.16, subdivision (b)(1). (See Jarrow Formulas, Inc. v. LaMarche
(2003) 31 Cal.4th 728, 734-735 [malicious prosecution claim arises from petition rights];
Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116 [special
motion to strike may be pursued by defendant who makes statements on behalf of
others].) This analysis applies equally to the Aitken defendants and the burden thus
shifted to Ms. Soukup to demonstrate the minimal merit of her claims. (§ 425.16, subd.
(b)(1); Navellier v. Sletten (2002) 29 Cal.4th 82, 93; Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 63.)
We agree with the Aitken defendants that Ms. Soukup’s argumentative and
conclusory declaration and the voluminous attached documents filed in opposition to the

-- 3 of 9 --

5
special motion to strike did not demonstrate her claims have minimal merit. As to the
first cause of action, the mere filing of a lawsuit, does not constitute the tort of abuse of
process. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc.
(1986) 42 Cal.3d 1157, 1169; Friedman v. Stadum (1985) 171 Cal.App.3d 775, 779-780;
Drasin v. Jacoby & Meyers (1984) 150 Cal.App.3d 481, 485; Seidner v. 1551 Greenfield
Owners Assn. (1980) 108 Cal.App.3d 895, 904-905; Christensen v. Younger (1975) 47
Cal.App.3d 613, 617.) Further, there is no evidence of substantial misuse of the litigation
process beyond the mere filing of the underlying suit. (Oren Royal Oaks Venture v.
Greenberg, Bernhard, Weiss & Karma, Inc., supra, 42 Cal.3d at p. 1169; Loomis v.
Murphy (1990) 217 Cal.App.3d 589, 595.) As to the second cause of action, malicious
prosecution, there is no evidence of: malice; an absence of probable cause at any time
during the underlying lawsuit; or damage. Hence, there has been no prima facie showing
of potential malicious prosecution liability on the part of the Aitken defendants. (Jarrow
Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at pp. 742-743; Sheldon Appel Co. v.
Albert & Oliker (1989) 47 Cal.3d 863, 885.) Therefore, the order denying the special
motion to strike of the Aitken defendants must be reversed.
B. The Hafif Defendants
The result is the same as to the Hafif defendants who are also sued in case No.
BC247941. Ms. Hafif was alleged to be counsel for Mr. Hafif and his firm. All of our
analysis as it relates to Mr. Aitken and his firm applies equally to Ms. Hafif. As to Greg,
he was sued as a fictitiously named defendant apparently in his role as counsel in the
underlying lawsuit. Our analysis as to Ms. Hafif and the Aitken defendants applies
equally to Greg.
As to Mr. Hafif and his firm, all of the abuse of process and malicious prosecution
claims against them arise out of the underlying suit. Hence, the claims against them arise
from the exercise of the right of petition. (Jarrow Formulas, Inc. v. LaMarche, supra, 31

-- 4 of 9 --

6
Cal.4th at pp. 734-735; Navellier v. Sletten, supra, 29 Cal.4th at p. 90.) The burden then
shifted to Ms. Soukup to demonstrate her abuse of process and malicious prosecution
claims had minimal merit. (§ 425.16, subd. (b)(1); Navellier v. Sletten, supra, 29 Cal.4th
at p. 93; Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 63.) Our
foregoing analysis as to Mr. Aitken and his firm has equal merit here: the mere filing of
a lawsuit does not constitute the tort of abuse of process (Oren Royal Oaks Venture v.
Greenberg, Bernhard, Weiss & Karma, Inc., supra, 42 Cal.3d at p. 1169; Friedman v.
Stadum, supra, 171 Cal.App.3d at pp. 779-780); there is no evidence of substantial
misuse of the litigation process beyond the mere filing of the underlying suit, an essential
element of an abuse of process claim (Oren Royal Oaks Venture v. Greenberg, Bernhard,
Weiss & Karma, Inc., supra, 42 Cal.3d at p. 1169; Loomis v. Murphy, supra, 217
Cal.App.3d at p. 595); and as to the malicious prosecution claim, there is no evidence of
malice, an absence of probable cause at any time during the underlying lawsuit, or
damage. (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at pp. 742-743; Sheldon
Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 885.) Therefore, the order denying
the special motion to strike of Mr. Hafif and his firm must be reversed.
III. MR. HUTTON’S LAWSUIT
A. The Hafif Defendants’ Initial Burden
On April 26, 2001, Mr. Hutton sued the Hafif defendants for intentional severe
emotional distress infliction. Mr. Hutton’s spouse is Terrie Hutton. Ms. Hutton was sued
by Mr. Hafif and his firm. Mr. Hutton sought to recover for the emotional distress he
experienced when Ms. Hutton was unjustifiably sued. The challenged conduct of the
Hafif defendants involved their role either as counsel or parties in the underlying lawsuit.
Hence, Mr. Hutton’s severe emotional distress claims arise from defendants’ petition
related conduct in the underlying lawsuit. (Jarrow Formulas, Inc. v. LaMarche, supra,

-- 5 of 9 --

7
31 Cal.4th at pp. 734-735; Briggs v. Eden Council for Hope & Opportunity, supra, 19
Cal.4th at pp. 1116; Soukup v. Stock, supra, __ Cal.App.4th at pp. __-__ [14 Cal.Rptr.3d
at pp. 86-89]; Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 152-153.)
The burden thus shifts to Mr. Hutton to show his case has minimal merit. (§ 425.16,
subd. (b)(1); Navellier v. Sletten, supra, 29 Cal.4th at p. 93; Equilon Enterprises v.
Consumer Cause, Inc., supra, 29 Cal.4th at p. 63.)
B. Mr. Hutton’s Burden
1. The underlying lawsuit
Ms. Hutton originally sued Mr. Hafif and his firm for legal malpractice on June
29, 1993. Ms. Hutton’s legal malpractice action against Mr. Hafif and his firm was
dismissed after a demurrer to her second amended complaint was sustained without leave
to amend. Sanctions in the sum of $25,000 were imposed against Ms. Hutton and her
attorney, Sassoon Sales, for filing a frivolous lawsuit in bad faith. The judgment of
dismissal and the sanctions order were reversed on appeal. Division Two of the Court of
Appeal for this appellate district found plaintiff had stated a fiduciary duty breach cause
of action. (Hutton v. Hafif (Aug. 20, 1997, B088405) [nonpub. opn.].) Ms. Hutton’s legal
malpractice action was later dismissed for failure to prosecute.
On May 6, 1994, a second lawsuit, Law Offices of Herbert Hafif v. Killingsworth
(Super Ct. Orange County, 1994, No. 729347), was filed. Mr. Hafif and his firm alleged
Ms. Hutton had conspired with others to coerce financial concessions by bringing
specious legal malpractice lawsuits and instigating negative publicity. The causes of
action asserted against Ms. Hutton in the second amended complaint in the Killingsworth
lawsuit, filed on October 13, 1994, were for fraud, malicious prosecution, defamation,
fiduciary duty breach, privacy invasion, and tortious interference with business relations.

-- 6 of 9 --

8
In addition to the fact that Ms. Hutton filed a legal malpractice action against Mr.
Hafif and his firm, the principle conspiracy evidence against her consisted of diaries she
had kept. The diaries purportedly document Ms. Hutton’s contacts with other members
of the alleged conspiracy. Orange County Superior Court Judge Leonard Goldstein
denied Ms. Hutton’s summary judgment motion in the second lawsuit. Judge Goldstein
found there were triable issues of material fact as to Ms. Hutton’s participation in the
alleged conspiracy based on her diaries. Ms. Hutton’s subsequent special motion to
strike pursuant to section 425.16 was granted. In connection with that motion, Orange
County Superior Court Judge Robert E. Thomas ruled that Ms. Hutton’s diaries were
inadmissible. Division Three of the Court of Appeal for the Fourth Appellate District
affirmed Judge Thomas’s order granting the special motion to strike. (Law Offices of
Herbert Hafif v. Soukup (April 27, 2000, G020977) [nonpub. opn.].) The Court of
Appeal held in part: “The only evidence potentially showing merit in Hafif’s claims
came from Hutton’s diaries, which were prepared for transmission to her lawyer. The
trial court properly concluded they were inadmissible.” (Id., typed opn. at p. 6.)
On November 30, 2000, Ms. Hutton filed a lawsuit alleging the second lawsuit,
the Killingsworth matter, was maliciously prosecuted against her. The Hafif defendants
in this suit were all sued by Ms. Hutton in the November 30, 2000, lawsuit. On July 20,
2001, the defendants filed a special motion to strike Ms. Hutton’s malicious prosecution
action. The defendants presented evidence that: a former associate had left the Hafif
firm, taken clients with him, and then sought to coerce defendants to relinquish claims for
fees and costs in connection with those matters; further, numerous frivolous legal
malpractice claims by former clients and State Bar of California complaints had been
subsequently filed against them, and negative publicity disseminated, in close proximity
to each other; there was communication among the alleged conspirators, all former
clients or employees of defendants; and a lawyer who represented some of the former
clients in their legal malpractice actions subsequently apologized to the defendants. The
defendants argued in part that probable cause was established as a matter of law because

-- 7 of 9 --

9
Judge Goldstein had denied plaintiff’s summary judgment motion in the second lawsuit,
the Killingsworth action. Plaintiff opposed the defendants’ section 425.16 motion in this
lawsuit. The special motion to strike was denied. On appeal, we reversed the order
denying the special motion to strike and remanded with directions that the defendants
recover their attorney fees and costs from Ms. Hutton. (Hutton v. Hafif (May 11, 2004,
B162572) [nonpub. opn.].)
2. The Special Motion To Strike Should Have Been Granted
The Hafif defendants’ special motion to strike argued: Mr. Hutton’s intentional
emotional distress complaint was legally insufficient; the Hafif defendants established
probable cause as a matter of law to pursue the action against Ms. Hutton; and the Hafif
defendants acted on the advice of counsel in bringing the Killingsworth action against
Ms. Hutton. Mr. Hutton’s opposition was premised on two declarations filed in response
to a special motion to strike filed in a related action, those of Ms. Hutton and Drew
Antablin, and a judicial notice request. No declaration was filed by Mr. Hutton. The
Hafif defendants’ reply argued: Mr. Hutton failed to introduce any evidence of causation
and damages; there was no evidence negating the advice of counsel defense; there was no
showing of malice; and Mr. Hutton failed to demonstrate the underlying lawsuit, the
Killingsworth action, was commenced or maintained without probable cause; and there
was no evidence the Hafif defendants intended to cause Mr. Hutton to suffer severe
emotional distress.
As noted previously, because the section 425.16, subdivision (b)(1) burden shifted
to Mr. Hutton, he had the responsibility of demonstrating his intentional severe emotional
distress infliction cause of action had minimal merit. (Navellier v. Sletten, supra, 29
Cal.4th at p. 93; Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p.
63.) We need not address the myriad of flaws in Mr. Hutton’s evidentiary showing in
this regard. Suffice to note, Mr. Hutton did not file a declaration. Hence, he has failed to

-- 8 of 9 --

10
present minimal evidence that: he in fact suffered severe emotional distress; any severe
emotional distress was legally caused by the conduct of the Hafif defendants; and he
suffered any damage. Therefore, the Hafif defendants’ special motion to strike should
have been granted. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001;
Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)
IV. DISPOSITION
The November 16 and 27, 2001, orders denying the special motions to strike are
reversed. Upon issuance of the remittitur, orders are to issue granting all special motions
to strike. Defendants, Wylie A. Aitken, the Law Offices of Wylie A. Aitken, the Law
Offices of Herbert Hafif, Herbert Hafif, Cynthia D. Hafif, and Greg K. Hafif, are to
recover their costs on appeal and attorney fees from plaintiff, Peggy J. Soukup, subject to
the limitation adverted to in the first paragraph of this opinion. Likewise, the Hafif
defendants are to recover their costs and attorney fees from plaintiff, Terry Hutton. All
attorney fee requests are to be made pursuant to California Rules of Court, rule 870.2(c).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P.J.
We concur:
ARMSTRONG, J. MOSK, J.

-- 9 of 9 --