Metropolitan News-Enterprise


Friday, January 6, 2017


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Supreme Court Says:

Anti-SLAPP Not Dependent on Subject Matter Jurisdiction


By a MetNews Staff Writer


The California Supreme Court held yesterday that a court may rule on a special motion to strike under California’s anti-SLAPP statute notwithstanding the court lacking subject matter jurisdiction.

In a unanimous opinion, Justice Leondra R. Kruger wrote:

“A court that lacks subject matter jurisdiction over a plaintiff’s claims has the power to resolve an anti-SLAPP motion on jurisdictional grounds. Because the court has the power to resolve the anti-SLAPP motion, it also has the power to award attorney’s fees to the defendant that prevails on such a motion.”

Patricia J. Barry, a suspended member of the State Bar, was disciplined for pursuing meritless cases in connection with a family law matter and a lawsuit against opposing counsel, a court commissioner, and three Los Angeles superior court judges found to be “groundless.”

According to State Bar records, Barry stipulated in 2011 to be placed on probation for two years, with an actual suspension of 60 days. Barry petitioned the state Supreme Court for a review of the stipulation and, after her petition was denied, filed an action in Los Angeles Superior Court challenging the disciplinary proceedings.

Hill Grants Motion

In response, the State Bar in 2011 filed an anti-SLAPP motion. Los Angeles Superior Court Judge Deidre H. Hill, while noting that the lack of subject matter jurisdiction—because the disciplining of attorneys is solely within the province of the Supreme Court—granted the motion, and awarded the State Bar attorney fees and costs.

She held that the State Bar’s activity was protected (the first prong of the anti-SLAPP statute), and that Barry had not demonstrated a likelihood of prevailing on her claims (the second prong).

Div. Two of this district’s Court of Appeal in 2013 reversed, in an opinion by Justice Victoria M. Chavez, finding that the absence of subject matter jurisdiction precluded Hill from ruling on the State Bar’s motion. She explained:

“The trial court’s lack of subject matter jurisdiction in this case precluded it from ruling on the State Bar’s anti‑SLAPP motion, an adjudication that necessarily involved a determination of the merits of plaintiff’s claims.”

Kruger’s Opinion

In yesterday’s decision, Kruger disagreed, declaring:

“[R]uling on an anti-SLAPP motion does not necessarily require a ruling on the merits of the plaintiffs claims; it may instead involve a determination that the plaintiff has no probability of prevailing because the court
lacks the power to entertain the claims in the first place. The Court of Appeal erred in concluding otherwise.”

Barry also argued that the appropriate vehicle for contesting jurisdiction is a demurrer, not an anti-SLAPP motion. Kruger responded:

“[A] demurrer is not the only mechanism for raising a challenge to a court’s subject matter jurisdiction….”

She said it has been held that such challenges may be raised “by a motion to strike; motion for judgment on the pleadings; motion for summary judgment; or in an answer.”

Kruger continued:

“And contrary to plaintiff’s argument, there is no rigid rule that requires a court to consider a jurisdictional challenge raised in a demurrer before, or in lieu of, considering such a challenge in the context of a special motion to strike under Code of Civil Procedure section 425.16.”

Anti-SLAPP Advantages

Advantages of an anti-SLAPP motion, the jurist noted, are a resolution of the issue at the outset of the litigation—with an anti-SLAPP motion being heard within 30 days of it being filed—a stay of proceedings until the motion is decided, with an award of costs to a prevailing defendant.

“These procedural protections would be lost if we were to adopt plaintiff’s proposed rule requiring all jurisdictional challenges to be resolved on demurrer, rather than in the context of a special motion to strike,” Kruger wrote.

The case is Barry v. State Bar of California, 2016 S.O.S. 45.

Barry represented herself in the case. Danielle Adoracion Lee of the State Bar’s Office of General Counsel was her opposing counsel.

In 1986, Barry successfully argued on behalf of the plaintiff before the U.S. Supreme Court in Meritor Savings Bank v. Vinson, the first sexual harassment case heard by that tribunal. The high court recognized sexual harassment as a violation of Civil Rights Act of 1964.

She is presently on involuntary inactive status as the result of new disciplinary charges, with the State Bar Court recommending that the Supreme Court disbar her.

Its Oct. 16 opinion and order, by Judge William Kearse McGill, noted:

“In the present case, a hearing judge found Barry culpable of four counts of misconduct in two matters, including failing to comply with disciplinary probation conditions in one matter, and failing to obey court orders and report sanctions to the State Bar in another.”

McGill declared:

“Barry’s misconduct over several years, resulting in three disciplinary proceedings, demonstrates that she is unable or unwilling to follow ethical rules. Further, she failed to prove compelling mitigation. As a result, we lack sufficient assurance that a sanction less than disbarment will prevent future violations. Thus, we recommend that Barry be disbarred.”


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