Soukup v. Hafif

Filed 10/17/02 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
GREG K. HAFIF et al.,
Defendants and Appellants.
B154311
(Super. Ct. No. BC247941)
APPEAL from orders of the Superior Court of Los Angeles County, Gregory
O’Brien, Judge. Affirmed.
Law Offices of Herbert Hafif, Jeanne A. Sterba; Law Offices of James J. Moneer
and James J. Moneer for Defendant and Appellant Greg K. Hafif
Aitken Aitken & Cohn, Darren O. Aitken and Wylie A. Aitken for Defendants and
Appellants Wylie A. Aitken and Law Offices of Wylie A. Aitken.
Ronald C. Stock, in pro. per., for Defendant and Appellant.
Peggy J. Soukup, in pro. per.; Law Offices of Gary L. Tysch and Gary L. Tysch
for Plaintiff and Respondent.
_______________________

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I. INTRODUCTION
In these consolidated appeals, Greg K. Hafif, Ronald C. Stock, Wylie A. Aitken,
and the Law Offices of Wylie A. Aitken (collectively, defendants) appeal from orders
denying their Code of Civil Procedure1, section 425.16 special motions to strike. The
present lawsuit is a malicious prosecution and abuse of process action. An underlying
lawsuit was dismissed pursuant to section 425.16. This lawsuit followed and defendants,
who were the unsuccessful plaintiffs in the underlying litigation, filed special motions to
strike notwithstanding the fact their underlying action was dismissed pursuant to section
425.16. We conclude, because the Legislature did not intend such, that the underlying
lawsuit did not fall within the protective purview in the present action of section 425.16.
Accordingly, we affirm the orders.
II. BACKGROUND
Defendants’ section 425.16 motions were directed at a complaint filed by Peggy J.
Soukup (plaintiff) alleging malicious prosecution and abuse of process. In an underlying
action, Herbert Hafif, Cynthia D. Hafif, Greg K. Hafif, and the Law Offices of Herbert
Hafif sued plaintiff. Mr. Aiken and his firm, and Mr. Stock, are attorneys who
represented the Hafifs and the Hafif firm in the underlying action against plaintiff.2 The
second amended complaint alleged plaintiff here, Ms. Soukup, a former employee of the
Hafif firm, had disclosed to a third party confidential information obtained during her
employment. The disclosure was purportedly made in furtherance of a conspiracy to
1 All further statutory references are to the Code of Civil Procedure.
2 We do not reach the question whether an attorney may rely upon his or her
exercise of free expression or petition rights while providing legal representation in an
underlying lawsuit as a basis for a section 425.16 special motion to strike in subsequent
litigation. (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1113; Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 152-154.)

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defame the Hafif firm. The underlying lawsuit was dismissed in response to a section
425.16 special motion to strike. An appellate court affirmed the dismissal. (Law Offices
of Herbert Hafif et al. v. Soukup et al. (April 27, 2000, G020977) [nonpub. opn.].) In an
unpublished opinion, the Court of Appeal for the Fourth Appellate District, Division
Three, held: the trial court erred in considering the plaintiffs’ subjective motives for
bringing the action, but the error was harmless; the allegedly actionable conduct
consisted of Ms. Soukup’s complaints to the Department of Labor, which statements
were within the protective purview of section 425.16; and the Hafif plaintiffs failed to
meet their burden of establishing a probability of succeeding on their claims against
Ms. Soukup. (Ibid.)
III. DISCUSSION
A. Standard of Review
A special motion to strike may be filed in response to “‘a meritless suit filed
primarily to chill the defendant’s exercise of First Amendment rights.’” (Dove Audio,
Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783, quoting Wilcox v.
Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2, disapproved on another point in
Equilon Enterprises, LLC v. Consumer Cause, Inc. (S094877, Aug. 29, 2002) __ Cal.4th
___, ___, fn. 5 [2002 WL 1980437, *9, fn. 5] Section 425.16, which was enacted in
1992, authorizes a court to summarily dismiss such meritless suits. (Stats. 1992, ch. 726,
§ 2, pp. 3523-3524.) The purpose of the statute was set forth in section 425.16,
subdivision (a) as follows: “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. . . .”

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Under section 425.16, any cause of action against a person “arising from any
act . . . in furtherance of the . . . right of petition or free speech . . .” in connection with a
public issue must be stricken unless the court finds a “probability” that the plaintiff will
prevail on whatever claim is involved. (§ 425.16, subd. (b)(1); Equilon Enterprises, LLC
v. Consumer Cause, Inc., supra, __ Cal.4th at p. ___ [2002 WL 1980437, *1]; Dowling v.
Zimmerman (2001) 85 Cal.App.4th 1400, 1415; Dove Audio, Inc. v. Rosenfeld, Meyer &
Susman, supra, 47 Cal.App.4th at p. 783.) Section 425.16, subdivision (e) provides: “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:
(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; (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.” In order to
protect the constitutional rights of petition and free speech, the statute is to be construed
broadly. (§ 425.16, subd. (a); Briggs v. Eden Council for Hope & Opportunity, supra, 19
Cal.4th at pp. 1119-1121; Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 1175-
1176.)
When a special motion to strike is made, the trial court must consider two
components. First, the court must consider whether the moving defendant has carried its
burden of showing that the lawsuit falls within the purview of section 425.16, i.e., arises
from protected activity. The moving defendant has the initial burden of establishing a
prima facie case that plaintiff’s cause of action arises out of a defendant’s actions in the
furtherance of the rights of petition or free speech. (§ 425.16, subd. (b)(1); Equilon
Enterprises, LLC v. Consumer Cause, Inc., supra, __ Cal.4th at p. ___ [2002 WL
1980437, *9]; Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65

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Cal.App.4th 713, 721, overruled on another point in Briggs v. Eden Council for Hope &
Opportunity, supra, 19 Cal.4th at p. 1123, fn. 10; Macias v. Hartwell (1997) 55
Cal.App.4th 669, 673; Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036,
1042-1043; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at
p. 784; Wilcox v. Superior Court, supra, 27 Cal.App.4th at pp. 819-821.) Second, once
the defendant meets this burden, the obligation then shifts to the plaintiff to establish a
probability that she or he will prevail on the merits. (§ 425.16, subd. (b)(1); Equilon
Enterprises, LLC v. Consumer Cause, Inc., supra, __ Cal.4th at p. ___ [2002 WL
1980437, *9]; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at
p. 1115; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907; Conroy v. Spitzer (1999) 70
Cal.App.4th 1446, 1450; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47
Cal.App.4th at pp. 784-785.) The moving defendant has no obligation to demonstrate
that the plaintiff’s subjective intent was to chill the exercise of constitutional speech or
petition rights. (Equilon Enterprises, LLC v. Consumer Cause, Inc., supra, __ Cal.4th at
p. ___ [2002 WL 1980437, *1].) Stated differently, there is no intent-to-chill proof
requirement. (Id. at p. ___ [2002 WL 1980437, *8].) Nor must a moving defendant
show that the action had the effect of chilling free speech or petition rights. (City of
Cotati v. Cashman (S099999, Aug. 29, 2002) ___Cal.4th ___, ___ [2002 WL 1997921].)
As the Supreme Court explained in Equilon Enterprises, LLC v. Consumer Cause, Inc.,
supra, __ Cal.4th at page ___ [2002 WL 1980437, *4] [“‘[T]he only thing the [moving]
defendant needs to establish to invoke the [potential] protection of the SLAPP statute is
that the challenged lawsuit arose from an act on the part of the defendant in furtherance
of [his or] her right of petition or free speech. From that fact the court may [effectively]
presume the purpose of the action was to chill the defendant’s exercise of First
Amendment rights. It is then up to the plaintiff to rebut the presumption by showing a
reasonable probability of success on the merits.’ (Fox Searchlight Pictures, Inc. v.
Paladino [(2001)] 89 Cal.App.4th [294,] 307 [].)” (Italics added.) In reviewing the trial
court’s order granting the special motion to strike, we use our independent judgment to
determine whether the litigation arises out of protected activity (Mission Oaks Ranch,

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Ltd. v. County of Santa Barbara, supra, 65 Cal.App.4th at p. 721; Foothills Townhome
Assn. v. Christiansen (1998) 65 Cal.App.4th 688, 695, disapproved on another point in
Equilon Enterprises, LLC v. Consumer Cause, Inc., supra, ___ Cal.4th at p. ___, fn. 5
[2002 WL 1980437, *9, fn. 5]) and a plaintiff has met its burden of establishing a
probability of prevailing on a claim in the complaint. (Monterey Plaza Hotel v. Hotel
Employees & Restaurant Employees (1999) 69 Cal.App.4th 1057, 1064; Church of
Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 653, disapproved on another
point in Equilon Enterprises, LLC v. Consumer Cause, Inc., supra, __ Cal.4th at p. ___,
fn. 5 [2002 WL 1980437, *9, fn. 5].)
B. The Present Orders Will Be Affirmed
Plaintiff argues the special motion to strike was correctly denied because the
underlying lawsuit did not arise out of an act in furtherance of defendants’ petition rights.
(§ 425.16, subd. (b)(1).) Plaintiff reasons the dismissal of the underlying lawsuit
pursuant to section 425.16 establishes that it was a meritless action; the purpose of the
underlying lawsuit was to chill her exercise of First Amendment rights. Therefore,
plaintiff posits, the underlying action does not fall within the protective purview of
section 425.16. We agree. Plaintiff’s present malicious prosecution and abuse of process
causes of action arise out of defendants’ underlying action against her. But the
underlying action was not brought in furtherance of defendants’ constitutionally protected
rights of petition or free speech. This is because it has been conclusively established that
the underlying action was a meritless lawsuit brought to chill plaintiff’s exercise of her
constitutional rights. The Legislature did not intend for section 425.16 to apply under
these unique circumstances.
In Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1359-1367,
disapproved on another point in Equilon Enterprises, LLC v. Consumer Cause, Inc.,
supra, __ Cal.4th at p. ___, fn. 5 [2002 WL 1980437, *9, fn. 5], it was undisputed the
defendants had engaged in illegal campaign money laundering in violation of the Political

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Reform Act. The defendants “effectively conceded” as much. (Id. at p. 1367.) In an
opinion authored by our colleague Associate Justice H. Walter Croskey, the Court of
Appeal held as a matter of law the defendants’ illegal conduct was not protected under
section 425.16; it was not a valid exercise of the defendants’ constitutional rights. (Id. at
pp. 1365-1367.) Associate Justice Croskey observed: “[T]he probability that the
Legislature intended to give defendants section 425.16 protection from a lawsuit based on
injuries they are alleged to have caused by their illegal campaign money laundering
scheme is as unlikely as the probability that such protection would exist for them if they
injured plaintiff while robbing a bank to obtain the money for the campaign contributions
or while hijacking a car to drive the campaign contributions to the post office for
mailing.” (Id. at p. 1366.)
In Wilcox v. Superior Court, supra, 27 Cal.App.4th at page 820, the Court of
Appeal for this appellate district, Division Seven, made a similar observation. Our
colleague, Associate Justice Earl Johnson stated: “[T]he statute requires the defendant to
make a prima facie showing the plaintiff’s 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).) . . .
Thus, if the defendant’s act [were] a lawsuit 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.” (Ibid.)
We reach the same conclusion. It is undisputed the underlying lawsuit did not
arise from a protected exercise of the petition right. The trial and appellate courts have so
held. That conclusion is final. The underlying lawsuit was meritless and was brought in
order to punish plaintiff for exercising her constitutional rights. It was not brought to
vindicate the Hafifs’ legally cognizable rights. It was not a valid exercise of
constitutional petition rights. As a result, defendants’ conduct in the underlying litigation
is not entitled to section 425.16 protection.

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None of the Supreme Court’s three recent decisions concerning the special motion
to strike, Equilon Enterprises, LLC v. Consumer Cause, Inc., supra, __ Cal.4th ___, City
of Cotati v. Cashman, supra, ___ Cal.4th ___, and Navellier v. Sletten (S095000, Aug.
29, 2002) ___ Cal.4th ___ [2002 WL 1997905], was decided in the procedural context of
the present case. None of those decisions considered whether the Legislature intended a
special motion to strike to apply when the underlying lawsuit was dismissed pursuant to
section 425.16. Therefore, the Supreme Court’s recent special motion to strike decisions
have no direct bearing on the case before us.
There is, however, language in Navellier v. Sletten, supra, ___ Cal.4th at page ___
[2002 WL 1997905, *7] that warrants discussion. The state court complaint in Navellier
arose out of affirmative counterclaims the defendant had filed in a federal court action.
Those counterclaims had been dismissed in the federal court on the ground the defendant
had signed a general release encompassing them. In response to the defendant’s special
motion to strike, the plaintiffs argued section 425.16 was inapplicable because the
petitioning activity, the federal counterclaims, were invalid. The Supreme Court
disagree. It held: “That the Legislature expressed a concern in the statute’s preamble
with lawsuits that chill valid exercise of First Amendment rights does not mean that a
court may read a separate proof-of-validity requirement into the operative sections of the
statute. [Citations.] Rather, any ‘claimed illegitimacy of the defendant’s acts is an issue
which the plaintiff must raise and support in the context of the discharge of the plaintiff’s
[secondary] burden to provide a prima facie showing of the merits of the plaintiff’s case.’
[Citation.] Plaintiffs’ argument ‘confuses the threshold question of whether the SLAPP
statute [potentially] applies with the question whether [an opposing plaintiff] has
established a probability of success on the merits.’ [Citation.] [¶] Plaintiffs’ argument
also runs contrary to the legislative design. ‘The Legislature did not intend that in order
to invoke the special motion to strike the defendant must first establish [his or] her
actions are constitutionally protected under the First Amendment as a matter of law. If
this were the case then the [secondary] inquiry as to whether the plaintiff has established

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a probability of success would be superfluous.’ [Citations.]” (Navellier v. Sletten, supra,
___ Cal.4th at p. ___ [2002 WL 1997905, *7].)
The present case is distinguishable. We do not read a proof-of-validity
requirement into section 425.16. Defendants were at no time required, in order to invoke
the special motion to strike, to establish that their actions were constitutionally protected
under the First Amendment as a matter of law. Rather, it had been conclusively
established that the underlying action, defendants’ petition activity, was subject to and
concluded pursuant to section 425.16. We hold only that when there has been a final
determination that the petition activity in question was dismissed pursuant to section
425.16, that conduct may not secure the protection of a special motion to strike in a later
lawsuit.
Defendants argue that section 425.16 necessarily applies to the present malicious
prosecution lawsuit. In Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087-1088, the
Court of Appeal held a malicious prosecution lawsuit “may” be subject to a special
motion to strike. However, Chavez did not involve an underlying lawsuit that had been
dismissed pursuant to section 425.16. Chavez did not address the present situation where
the underlying lawsuit did not arise from the valid exercise of petition rights. Chavez is
not controlling.

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IV. DISPOSITION
The orders denying defendants’ motions to strike under Code of Civil Procedure
section 425.16 are affirmed. Plaintiff, Peggy J. Soukup, is to recover her costs on appeal,
jointly and severally, from defendants, Greg K. Hafif, Ronald C. Stock, Wylie A. Aitken,
and the Law Offices of Wylie A. Aiken.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P.J.
I concur:
ARMSTRONG, J.

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MOSK, J., Dissenting.
I respectfully dissent. I believe that plaintiff’s lawsuit is subject to the provisions
of Code of Civil Procedure, section 425.16 (section 425.16) and that plaintiff has not
demonstrated a reasonable probability that she would prevail on her claims. Accordingly,
the trial court should have granted defendants’ section 426.16 motions (also known as
SLAPP motions).3
Section 425.16 provides in relevant part: “A cause of action against a person
arising from any act of the 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.” (Code Civ. Proc., § 425.16, subd. (b)(1).) Under this statute, the party moving to
strike a cause of action (here, defendants) has the initial burden to show that the cause of
action “arises from [an] act . . . in furtherance of the [moving party’s] right of petition or
free speech.” (Ibid.; Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 67 (Equilon); Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99
Cal.App.4th 1179, 1188 (Mattel).) Once that burden is met, the burden shifts to the
opposing party (here, plaintiff) to demonstrate the “probability that the plaintiff will
prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1); Equilon, supra, 29
Cal.4th at p. 67; Mattel, supra, 99 Cal.App.4th at p. 1188.)
In this case, plaintiff’s causes of action for malicious prosecution and abuse of
process arise from defendants’ filing of a lawsuit as attorneys representing clients – a
3 I refer to plaintiff Peggy J. Soukup as plaintiff, and to defendants Greg K. Hafif,
Ronald C. Stock, Wylie A. Aitken, and the Law Offices of Wylie A. Aitken collectively
as defendants.

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lawsuit determined to be unmeritorious, but a lawsuit just the same.4 Filing a lawsuit is
an act in furtherance of the constitutional right of petition. (See, e.g., Navellier v. Sletten
(2002) 29 Cal.4th 82, 90 (Navellier); Briggs v. Eden Council for Hope & Opportunity
(1999) 19 Cal.4th 1106, 1115; Mattel, supra, at p. 9; Chavez v. Mendoza (2001) 94
Cal.App.4th 1083, 1087 (Chavez).) This is so regardless of whether or not the lawsuit
has merit. (See Mattel, supra, 99 Cal.App.4th at p. 1188; Chavez, supra, 94 Cal.App.4th
at pp. 1087-1088.) Plaintiffs have a constitutional right to file a lawsuit “‘“even if it is
extremely unlikely that they will win.”’” (Wilson v. Parker, Covert & Chidester (2002)
28 Cal.4th 811, 817 (Wilson).)
Attorneys representing plaintiffs in such lawsuits also are protected by the
constitutional right of petition or free speech as set forth in section 425.16. Subdivision
(e) of that section states in relevant part that the term “act in furtherance of a person’s
right of petition or free speech” includes “(1) any written or oral statement or writing
made before a . . . judicial proceeding; [or] (2) any written or oral statement or writing
made in connection with an issue under consideration or review by a . . . judicial
body. . . .” Given that an attorney represents a client in a lawsuit by advocating orally
and in writing in a judicial proceeding, that representation falls within the protection of
section 425.16, especially in light of the Supreme Court’s instruction (Briggs v. Eden
Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1113) and statutory directive (§
425.16, subd. (a)) to construe section 425.16 broadly. (See Briggs v. Eden Council for
Hope & Opportunity, supra, 19 Cal.4th at p. 1116 [“the statute does not require that a
defendant moving to strike under section 425.16 demonstrate that its protected statements
or writings were made on its own behalf (rather than, for example, on behalf of its clients
or the general public)”].)
4 Plaintiff alleged claims for malicious prosecution and abuse of process against all
defendants. Following the sustaining of a demurrer without leave to amend, the abuse of
process claim survives only as to defendant Ronald C. Stock.

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It may be that section 425.16 has, by virtue of its express language, been applied
beyond that for which it was intended. Nevertheless, section 425.16 does not distinguish
between different acts in furtherance of the constitutional right of petition or free speech,
i.e., by recognizing some acts but not others. It includes the filing of lawsuits. There is
no distinction between the type of lawsuit filed or in what manner the lawsuit was
resolved or terminated. (See Navellier, supra, 29 Cal.4th at p. 92.) A lawsuit dismissed
by summary judgment, demurrer, or a SLAPP motion is still a lawsuit in furtherance of a
person’s right of petition covered by section 425.16.
As the California Supreme Court recently explained in Navellier, the issue of
whether defendants’ underlying lawsuit had merit – and thus whether defendants’ act in
filing it is constitutionally protected as a matter of law – is not relevant to defendants’
initial burden on a SLAPP motion. (Navellier, supra, 29 Cal.4th at pp. 94-95; see also
Chavez, supra, 94 Cal.App.4th at p. 1089; Fox Searchlight Pictures, Inc. v. Paladino
(2001) 89 Cal.App.4th 294, 305 [“The Legislature did not intend that in order to invoke
the special motion to strike the defendant must first establish her actions are
constitutionally protected under the First Amendment as a matter of law”].) Instead, the
merits of the underlying lawsuit are relevant only to the second step of the SLAPP
motion, i.e., plaintiff’s burden to show a reasonable probability of prevailing on her
malicious prosecution and abuse of process claims. (Navellier, supra, 29 Cal.4th at pp.
94-95; Chavez, supra, 94 Cal.App.4th at pp. 1089-1090.) “Otherwise, the second step
would become superfluous in almost every case, resulting in an improper shifting of the
burdens. [Citation.] A limited exception to the rule precluding a court from determining
the validity of the asserted constitutional right in the first step of the anti-SLAPP analysis
applies only where the defendant indisputably concedes the claim arose from illegal or
constitutionally unprotected activity.” (Chavez, supra, 94 Cal.App.4th at p. 1090, italics
added.)
In this case, unlike Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356,
disapproved on another ground in Equilon Enterprises, LLC v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, defendants do not concede that the underlying lawsuit was illegal

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or constitutionally unprotected, even though the trial court dismissed it under section
425.16 and the appellate court affirmed the dismissal. Accordingly, I would hold that
defendants met their burden to show that plaintiff’s claims arise from an act in
furtherance of defendants’ constitutional right of petition. Thus, under my conclusions, it
would be necessary to determine whether plaintiff met her burden to show a reasonable
probability of prevailing on her claims.
The process used to determine whether parties opposing a SLAPP motion have
met their burden is similar to the process used to determine whether parties opposing a
motion for summary judgment have met their burden: “a probability of prevailing is
established if the plaintiff presents evidence establishing a prima facie case which, if
believed by the trier of fact, will result in a judgment for plaintiff.” (Mattel, supra, 99
Cal.App.4th at p. 1188.) Whether plaintiff has established her prima facie case is a
question of law. (Wilson, supra, 28 Cal.4th at p. 821 [“In deciding the question of
potential merit, the trial court considers the pleadings and evidentiary submissions of
both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not
weigh the credibility or comparative probative strength of competing evidence, it should
grant the motion if, as a matter of law, the defendant’s evidence supporting the motion
defeats the plaintiff’s attempt to establish evidentiary support for the claim”].)
Section 426.16 by its own terms is to be “construed broadly” (Code Civ. Proc.,
§ 425.16, subd. (a)), and there is a “general disfavor in the law for claims of malicious
prosecution” (Loomis v. Murphy (1990) 217 Cal.App.3d 589, 594). It is difficult to
determine the role these principles should play in coming to a conclusion as to whether a
party has submitted enough evidence to show a probability of prevailing on the merits in
a malicious prosecution action. Here, as I shall discuss, plaintiff has not made such a
showing, whatever the role of these general principles. But those principles may, to
some, give justification to my conclusion.
To establish a claim for malicious prosecution, plaintiff must show that the
underlying action (1) was commenced by or at the direction of defendants and was
pursued to a legal termination in favor of plaintiff, (2) was brought without probable

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cause, and (3) was initiated with malice. (Mattel, supra, 99 Cal.App.4th at p. 1190, citing
Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50.) The second element —
whether defendants had probable cause to bring the underlying lawsuit — is a question of
law. (Wilson, supra, 28 Cal.4th at p. 817, citing Sheldon Appel Co. v. Albert & Oliker
(1989) 47 Cal.3d 863, 874-877 (Sheldon Appel).)
Plaintiff’s allegations of malicious prosecution are directed at the attorneys
representing unsuccessful parties (hereafter the Hafifs) in the underlying action against
plaintiff and several other parties (for the sake of clarity, I refer to all of the parties
against whom the underlying action was brought collectively as the claimants). The facts
before the trial court establish probable cause to commence the underlying action and
therefore insulate both the Hafifs and their attorneys—the defendants in this case.
These facts include the number of cases and claims the claimants filed in close
proximity with each other against the Hafifs and the disposition of those cases and claims
generally in favor of the Hafifs; the press coverage that might seem orchestrated by the
claimants; the apparent communication among the various claimants, including plaintiff,
all of whom were former clients and employees of the Hafifs; an apologetic
acknowledgement from a lawyer representing the claimants that the claims lacked merit;
and an apparent effort to have the Hafifs relinquish claims for fees and costs from clients
taken by former employees. These facts, even though later contested, were adequate to
give the Hafifs (represented by defendants) the right to bring the underlying action. This
is so even where “it is very doubtful the claim will ultimately prevail.” (Wilson, supra,
28 Cal.4th at p. 824.)
Relying upon these facts, a trial court ruled in favor of the Hafifs in a malicious
prosecution action brought against them by one of the claimants whom the Hafifs sued in
the same underlying action at issue here and arising out of that underlying action. The
trial court determined that the Hafifs had probable cause to bring the action against all of
the claimants sued in the underlying action, including plaintiff. Such a ruling is
consistent with and supportive of defendants’ position that the Hafifs (and therefore

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defendants) had probable cause to file the underlying action against plaintiff. In addition,
the Hafifs’ case against one of the claimants survived a summary judgment motion.
Also supporting defendants’ position that there was probable cause is the
following statement by the Court of Appeal for the Fourth District in affirming the
dismissal of the Hafifs’ underlying lawsuit against the claimants (one of whom was
Terrie Hutton): “The basis for the complaint’s allegations against Hutton and Soukup
was the newspaper articles. The articles accurately reflected that complaints had been
made to the State Bar and to the Department of Labor and the contents of those
complaints. 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. Hafif failed to meet their burden of
establishing a probability of succeeding in the claims against Hutton and Soukup.” The
appellate court’s statement that Hutton’s diaries “potentially show[ed] merit” in the
Hafifs’ claims in the underlying lawsuit supports defendants’ assertion that they had
probable cause to file the lawsuit on behalf of the Hafifs.5 In fact, the trial court in the
underlying lawsuit relied upon those diaries to deny Hutton’s summary judgment motion
(a different judge subsequently granted plaintiffs’ SLAPP motion).
That plaintiff submitted evidence contradicting the allegations in the underlying
action does not establish a lack of probable cause. First, in determining “probable
cause,” — i.e., whether the prior action was “objectively tenable” (Sheldon Appel, supra,
47 Cal.3d at pp. 883, 878) — the court views the facts known to the party at the time of
the filing of the action and reasonable inferences therefrom, because the probable cause
issue rests on whether defendants had probable cause to initiate the lawsuit. (See
Vanzant v. DaimlerChrysler Corp. (2002) 96 Cal.App.4th 1283, 1290-1291.) Second,
even if defendants were aware of contradictory evidence at the time they filed the
5 Admittedly, the statement that this was the “only evidence” might be viewed as
helpful to plaintiffs’ position, although the trial court did suggest that the appellate
court’s statement may answer the probable cause question in the Hafifs’ favor.

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underlying lawsuit, plaintiff cannot establish lack of probable cause unless that evidence
negates the evidence upon which defendants and their clients relied when they filed the
lawsuit. If plaintiff’s evidence simply contradicts defendants’ evidence and raises a
triable issue of fact on the underlying claims, plaintiff cannot prevail on a malicious
prosecution claim unless she can show that defendants’ evidence is false. (See Roberts v.
Sentry Life Ins. (1999) 76 Cal.App.4th 375 [holding that denial of summary judgment
motion brought by a defendant who later prevailed at trial precludes malicious
prosecution by defendant against plaintiff when summary judgment motion was denied
on the ground that there was a disputed issue of material fact, unless it is shown that the
evidence in opposition to summary judgment motion was false].)
One of the defendants, Ronald C. Stock, was not even counsel for any party at the
inception of the underlying action.
For those reasons, based on the record before the court,6 I conclude that
defendants have established that they had probable cause to file on behalf of their clients
the underlying action and that plaintiff has not carried her burden to show she would
prevail on her malicious prosecution claims.7 Moreover, plaintiff did not establish a
probability that she would prevail on her other cause of action for the abuse of process as
pleaded. Filing an action for an improper purpose does not constitute an abuse of
process. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc.
(1986) 42 Cal.3d 1157, 1169.) Plaintiff did not allege or set forth facts showing “some
6 The trial court did not reach the issue of probable cause and did not rule on various
evidentiary objections. Defendants requested that the trial court and this court take
judicial notice of the files in a related case brought against the Hafifs (Court of Appeal
Case No. B152759). The trial court did not rule on this request, but I am entitled to take
such judicial notice. (See Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 483,
fn. 3.)
7 My determination regarding probable cause is based on the record on the SLAPP
motion, which motion was filed with defendants’ answer to the complaint. As the case
proceeds, plaintiffs may be able to provide additional material to support their contention
that defendants did not have probable cause.

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substantial use or misuse of the judicial process beyond the mere filing of the prior
action” (Loomis v. Murphy, supra, 217 Cal.App.3d at p. 595) necessary for an abuse of
process claim.
For the above reasons, I conclude that defendants’ SLAPP motion should have
been granted. Therefore, I respectfully dissent.
MOSK, J.

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