Metropolitan News-Enterprise


Monday, February 7, 2005


Page 1


Anti-SLAPP Statute Applies to Harassment Suits, C.A. Rules


By KENNETH OFGANG, Staff Writer/Appellate Courts


The anti-SLAPP statute applies to actions filed under the statutory procedure for expedited injunctions against harassment, the First District Court of Appeal ruled Friday.

Reversing a ruling by an Alameda Superior Court judge, Div. Two ordered that John Quintero’s motion to strike a suit by his former landlord, Richard E. Thomas, be granted. 

Thomas, who owns numerous Northern California rental properties, contends that Quintero and others harassed him and caused him “extreme embarrassment and severe emotional distress” by picketing his San Leandro home and the Castro Valley church where he is a deacon. Quintero instituted the picketing after being evicted from a Thomas-owned property in Hayward, joining with a group of like-minded ex-Thomas tenants.

Litigiousness Reported

The Bay Guardian, a San Francisco weekly newspaper, reported last summer that Thomas has been involved in numerous suits involving tenants, including a class action alleging that he fraudulently refuses to refund security deposits, regardless of the conditions of the units; and that he has sued 14 of his former lawyers for malpractice, been cited for housing violations on both sides of the Bay Bridge, and been declared a vexatious litigant.

 After Judge James Richman denied Quintero’s anti-SLAPP motion, Judge Julie Conger heard Thomas’ petition for an injunction under Code of Civil Procedure Sec. 527.6. Conger, who had earlier issued a TRO,  determined that the incidents alleged in the petition did not “rise to the level necessitating a three year civil harassment restraining order.”

Justice Ignacio Ruvolo, writing for the Court of Appeal, said Richman was mistaken in concluding that the anti-SLAPP law does not apply to Sec. 527.6 actions.

While no court has previously ruled on the issue, the justice explained, Sec. 425.16 by its terms applies to “petitions.” Since some types of cases are exempted from the anti-SLAPP law, and anti-harassment suits are not listed among those, “that old saw of statutory construction, ‘expressio unius est exclusion alterius’ “ comes into play, the justice said.

The maxim holds that if exemptions are specified in a statute, additional exemptions will not be implied absent clear legislative intent.

Applying the anti-SLAPP law to cases brought under the civil harassment procedure, Ruvolo went on to say, is not inconsistent with Sec. 527.6’s goals of protecting against harassment and providing an expedited remedy.

Sec. 527.6, the jurist noted, already allows delays to occur after a TRO is issued, as occurred in this case. And there is no reason why those delays need be any longer in cases where an anti-SLAPP motion is filed, Ruvolo said, since Sec. 425.16 also provides for an expedited procedure.

Procedure Explained

The justice also concluded that the trial court may proceed with the hearing on the anti-harassment petition even if the anti-SLAPP motion hearing is continued for discovery purposes, as the law permits. And the plaintiff may in any event obtain interim relief by way of a TRO, which is not subject to the anti-SLAPP procedure, Ruvolo wrote.

Turning to the specifics of the case, Ruvolo concluded that the picketing, which involved distribution of flyers explaining the picketers’ side of their disputes with the landlord, constituted First Amendment-protected activity in connection with a public issue or an issue of public interest.

The picketers, the justice noted, were making a “a genuine effort to engage the members of Thomas’s congregation in discussing and finding a solution to the disputes.”

Because Thomas’ suit implicated constitutional rights, Ruvolo continued, the burden was on him to show a likelihood of prevailing on the merits. No such showing was made, the justice concluded, because the evidence did not show that Quintero had engaged in or threatened violence, or had engaged in a course of unlawful conduct, or that Conger was incorrect in denying relief.

The case is Thomas v. Quintero, A103597.


Copyright 2005, Metropolitan News Company