Soukup v. Law Offices of Herbert Hafif 8/16/02 CA2/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B152759

Case Date: 11/25/2002

Preview:Filed 8/16/02 Soukup v. Law Offices of Herbert 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. LAW OFFICES OF HERBERT HAFIF et al., Defendants and Appellants. TERRY HUTTON, Plaintiff and Respondent, v. LAW OFFICES OF HERBERT HAFIF et al., Defendants and Appellants. (Super. Ct. No. BC249367) B152759 (Super. Ct. No. BC247941)

APPEALS from orders of the Superior Court of Los Angeles County, Gregory O'Brien, Judge. Affirmed.

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Law Offices of Herbert Hafif, Jeanne A. Sterba; Law Offices of James J. Moneer and James J. Moneer for Defendants and Appellants. Law Offices of Gary L. Tysch and Gary L. Tysch for Plaintiff and Respondent Peggy J. Soukup. Cheong, Denove, Rowell, Antablin & Bennett, John F. Denove, John Rowell and Drew R. Antablin for Plaintiff and Respondent Terry Hutton. I. INTRODUCTION In these consolidated appeals, the Law Offices of Herbert Hafif (the firm), Herbert Hafif, Cynthia D. Hafif, and Greg K. Hafif (all collectively defendants) appeal from orders denying their special motions to strike pursuant to Code of Civil Procedure, section 425.16 (section 425.16). The motions were directed at the complaints filed by Peggy J. Soukup (case No. BC247941) and Terry Hutton (case No. BC249367) (plaintiffs). Defendants previously had sued Ms. Soukup and Mr. Hutton's wife in an underlying action. Defendant's underlying lawsuit was dismissed in response to section 425.16 special motions to strike. An appellate court affirmed the dismissal. Plaintiffs then filed the present malicious prosecution actions against the defendants. Defendants sought to dismiss the present malicious prosecution actions pursuant to section 425.16. The trial court concluded defendants' underlying action did not fall with the purview of section 425.16. In other words, the trial court found the present lawsuits did not arise out of defendants' valid exercise of their constitutional rights in bringing the underlying action because that litigation was dismissed pursuant to section 425.16. We agree. Accordingly, we affirm the orders.

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II. BACKGROUND In May 1994, the firm and the Hafifs brought a lawsuit against Terrie Hutton (Mr. Hutton's wife), a former client, and Ms. Soukup, a former employee, among others. The underlying lawsuit was filed in Orange County Superior Court. Defendants alleged a conspiracy to harm their professional reputations and business interests. They asserted causes of action for: malicious prosecution; defamation; fiduciary duty breach (as to Ms. Soukup); tortious interference with business relationships; and privacy invasion. In 1996, Ms. Hutton and Ms. Soukup successfully moved to strike the second amended complaint filed by the firm and the Hafifs pursuant to section 425.16. The firm and the Hafifs appealed. The Court of Appeal for the Fourth Appellate District, Division Three, affirmed the dismissal order entered after the special motion to strike was granted in a nonpublished opinion holding the claims of the firm and the Hafifs fell within the purview of section 425.16 and they failed to establish a probability of success at trial. (Law Offices of Herbert Hafif v. Soukup (April 27, 2000, G020977 [nonpub.opn.], typed opn. pp. 4-6.) In April 2001, Mr. Hutton sued the firm and the Hafifs alleging he had suffered damages, emotional and otherwise, as a result of the six-year defense of their lawsuit against his wife. Defendants, the firm and the Hafifs, filed a section 425.16 special motion to strike Mr. Hutton's complaint. The trial court denied the special motion to strike brought by the firm and the Hafifs. The trial court concluded: the underlying action was dismissed pursuant to section 425.16; because it was dismissed in response to a special motion to strike, it was not the type of proceeding the Legislature sought to protect under section 425.16; and therefore, the present special motion to strike must be denied . Two days after the ruling, Mr. Hutton voluntarily dismissed his complaint. Defendants, the firm and the Hafifs, have nevertheless appealed from Judge O'Brien's order. No argument has been made that the appeal is moot.

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Also in April 2001, Ms. Soukup sued defendants for abuse of process and malicious prosecution (case No. BC247941). Defendants filed a section 425.16 special motion to strike. Judge O'Brien denied the motion and defendants appealed. III. DISCUSSION A. The 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.) Section 425.16, which was enacted in 1992, authorizes a court to summarily dismiss such meritless suits. (Stats. 1992, ch. 726,

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