Metropolitan News-Enterprise


Friday, July 28, 2006


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Court: ‘SLAPPback’ Plaintiff Has Burden of Showing Illegality of Underlying Suit to Avoid SLAPP Motion


By a MetNews Staff Writer


A paralegal who sued her former employer for malicious prosecution, after his malicious prosecution suit against her was dismissed as a SLAPP had the burden of showing that his suit was illegal as a matter of law in order to avoid his anti-SLAPP motion, California’s Supreme Court held yesterday.

The court reversed this district’s Court of Appeal’s rejection of Peggy J. Soukup’s malicious prosecution action against Claremont attorney Herbert Hafif under the anti-SLAPP statute. While the high court agreed with Hafif and the Court of Appeal that Soukup’s action was subject to an anti-SLAPP motion, the justices said that Soukup showed a likelihood of prevailing at trial, so the motion was properly rejected.

Soukup was employed by Hafif and participated in his firm’s employee pension plan. In 1992 she was informed that the plan was being terminated, and that its assets, which included nonregistered privately-held stock, would be distributed.

After Soukup’s stockbroker advised her that such stock could not be placed into her retirement account for various reasons and questioned the value Hafif gave it, Soukup refused to sign documentation transferring it to her. She alleged that this resulted in a confrontation between her and Hafif in which he told her, “that if I did not sign . . . in the next two minutes, he would come across the desk and kick my ass.”

Hafif denied this.

Soukup quit her job and met with an investigator from the U.S. Department of Labor, which triggered an investigation into Hafif’s pension plan, but resulted in no action being taken. Soukup also filed a federal suit against Hafif for the recovery of pension benefits which settled.

After Soukup quit her job, several former clients of Hafif filed lawsuits and complaints with the State Bar of California, alleging excessive fees and costs. A former associate attorney of Hafif also alleged in a lawsuit that he was wrongfully terminated.

Most of these matters were resolved in Hafif’s favor.

Hafif then filed suit against Soukup and the former clients and associate for malicious prosecution, among other things. After Soukup filed an anti-SLAPP motion, arguing that she was sued because of her complaint to the Department of Labor and offering evidence that she had nothing to do with the many suits filed against Hafif, the court dismissed his suit as to her.

She then filed suit against Hafif for malicious prosecution, and he filed an anti-SLAPP motion claiming that his underlying suit was protected speech.

While the motion was being appealed up and down the courts, the Legislature enacted Code of Civil Procedure Sec. 425.18, an amendment to the anti-SLAPP statute which provides procedures for filing slap motions in “SLAPPback” actions, defined as “any cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike” under the anti-SLAPP statute.

Sec.425.18(h) prohibits anti-SLAPP motions in SLAPPback actions where the “prior cause of action from which the SLAPPback arises was illegal as a matter of law.”

Justice Carlos R. Moreno, writing for a unanimous court, explained:

“In summary, section 425.18, subdivision (h) provides a narrow exception to the rule that malicious prosecution actions are subject to scrutiny under the anti- SLAPP statute which applies only if (1) the malicious prosecution action is a SLAPPback and (2) the filing and maintenance of the underlying action was illegal as a matter of law.”

The court held that something more than showing that the underlying suit was dismissed as a SLAPP is required to show that the it was illegal as a matter of law, and that the burden is on the SLAPPback plaintiff.

Moreno explained:

“[O]nce the defendant has made the required threshold showing that the challenged action arises from assertedly protected activity, the plaintiffmay counter by demonstrating that the underlying action was illegal as a matter of law . . . . In doing so, the plaintiff must identify with particularity the statute or statutes violated by the filing and maintenance of the underlying action. . . . Additionally . . . the plaintiff must show the specific manner in which the statute or statutes were violated with reference to their elements.”

The court found that Soukup failed to meet this burden, as the statutes she relied upon in attempting to show that Hafif’s suit was “illegal” required an employer-employee relationship, which no longer existed when she complained to the Department of Labor.

After finding that Sec. 425.18(h) did not protect Soukup’s suit from an anti-SLAPP motion, the court, applying the normal anti-SLAPP methodology, determined that Hafif’s action was protected speech, but that Soukup had showed that she was likely to prevail in her suit, so Hafif’s anti-SLAPP motion was not well taken.

In finding that Soukup was likely to prevail, the court held that the mere fact that Hafif’s suit was dismissed as a SLAPP suit did not show that it was brought with malice, but found other evidence of malice.

The case is Soukup v. Law Offices of Herbert Hafif, 06 S.O.S. 3892.


Copyright 2006, Metropolitan News Company