LUCAS v. SWANSON DOWDALL

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Court of Appeal, Fourth District, Division 3, California.

Nelson LUCAS, Plaintiff and Appellant, v. SWANSON & DOWDALL et al., Defendants and Respondents.

No. G015273.

Decided: February 27, 1997

Margaret Kathryn Maas, San Clemente, R. Richard Farnell, Newport Beach, and Leonard Sacks, Granada Hills, for Plaintiff and Appellant. Long & Williamson, John S. Williamson, III, John A. Delis, Santa Ana, Swanson & Gieser, Robert G. Williamson, Jr., Santa Ana, Waters, McCluskey & Boehle, Fritz B. Hax, Santa Monica, Roppo, Massie & Berman, Anna F. Roppo and Andrew E. Berman, San Diego, for Defendants and Respondents.

OPINION

 A “slapp” suit is a legal action aimed at preventing or punishing citizens from exercising political rights, particularly the right to petition the government for redress of grievances and the right of free speech.  (See Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, 33 Cal.Rptr.2d 446.)   The acronym “slapp” stands for “strategic lawsuits against public participation,” a term coined by two professors.  (See Dixon v. Superior Court (1994) 30 Cal.App.4th 733, 736, fn. 1, 36 Cal.Rptr.2d 687.) Before the word “slapp” gained widespread legal currency, such suits were sometimes referred to as “intimidation suits.”  (E.g., Brecher, The Public Interest and Intimidation Suits:  A New Approach (1988), 28 Santa Clara L.Rev. 105.)   The typical causes of action in a slapp suit are defamation and interference with economic advantage.  (See Wilcox, supra, 27 Cal.App.4th at p. 816, 33 Cal.Rptr.2d 446.)

If ever there was a slapp suit, the one filed in March 1989 by a mobilehome park owner and its management company against a rent control activist was it.   In 1988, residents of mobilehome parks in Anaheim fought a bitter political battle in an unsuccessful attempt to establish mobilehome park rent control.   During that battle, one of the residents published a newsletter accusing a park owner of being greedy and illegally attempting to entice park residents into long-term leases to circumvent the proposed rent control ordinance.

The conflict came to a head in January 1989, when the Anaheim City Council turned down the effort to put a rent control proposal on the ballot.   Afterwards, the resident pointed out in his newsletter that certain Anaheim City Council members who had voted against putting the proposal on the ballot had also accepted campaign contributions “from Park owner supported organizations.”   The newsletter stated that the particular council member who had made the motion to deny the proposed ordinance had accepted $1,200 in campaign contributions from park owners.   It asked rhetorically, “Now who do you suppose he is going to swing his vote toward?”

In March 1989 the park owner and its management filed a libel and economic interference suit against the resident newsletter publisher.   Just a little over a year later, in May 1990, they voluntarily dismissed it.

Two months later, the resident newsletter publisher “slapped back” with a lawsuit of his own for malicious prosecution.1  The trial of this slapp-back suit was bifurcated, with the issue of whether there was probable cause to bring the first suit tried first.   After three days of testimony the trial judge granted a motion for nonsuit.   From the ensuing judgment of dismissal the activist has appealed to this court.

We reverse because, as explained below, the trial judge used the wrong legal standard to evaluate the objective tenability of the original slapp suit for libel and economic interference.   The trial judge made the mistake of concluding it was enough that the newsletter publisher's accusations might have caused some harm if they were false.   As we now explain, the publisher's accusations should have been evaluated in the context of a concerted effort to petition the government for redress of grievances.   In that context-that is, an exercise of rights under the petition clause of the federal and state constitutions-the accusations could not support tort liability unless made with actual malice.   Because there was no attempt on the part of the park owner and its management company to show such malice, the trial court should have denied the nonsuit motion.   Accordingly, the judgment must now be reversed and the newsletter publisher's action allowed to proceed.

Facts

In late 1986, Nelson Lucas purchased a mobilehome in the Del Prado Mobilehome Park in Anaheim.   Most of the residents were senior citizens living on fixed retirement incomes.   Lucas soon became active in the park homeowners' association and began writing newsletters about rent control.   In particular, he tried to drum up support for a rent control initiative then circulating for presentation to the Anaheim City Council.

In July 1988 there was a 9.4 percent rent increase.   The same month Lucas was elected president and chairman of the homeowners' association.   He continued to champion the cause of mobilehome rent control in his newsletters to association members.

The park was purchased on November 1, 1988, by a limited partnership calling itself the Del Prado Mobilehome Park, L.P.2  In light of the effort to institute mobilehome rent control in Anaheim, the new owners sought to have park residents enter into long-term leases, which would have effectively circumvented the circulating ordinance.   In the November 22 edition of his newsletter, Lucas urged homeowners not to sign five-year leases.   And he stated that if any homeowner lost a sale because the new owner would not allow new residents who did not sign five-year leases, “management [would be] liable for damages.” 3  On December 7, Lucas wrote that rents had been increased for new buyers and that the management company was not offering any alternatives to new buyers except long term leases, practices which he described as “illegal.”   He ended with a warning that if residents did not join in the “struggle,” the end result might be to be “kicked out of our homes.” 4

On December 19 rents were increased again, in some cases bringing the total rent increases during 1988 to 44.6 percent.   Lucas described the situation as one in which “real live people” were being “bankrupt[ed] for the benefit of greedy park-owners.” 5

On January 18, 1989, Lucas again inveighed against long-term leases.6  The next week, on January 26, campaign contributions by “park owners” to one city council member were his target.7  Finally, on February 22, after the Anaheim City Council had rejected the effort to put a mobilehome rent control proposal on the ballot, Lucas noted that two members of the council who voted against his position had received campaign contributions from the park owners.8

A month later, the Del Prado Mobilehome Park, L.P. and Glenneyre Management, Inc. filed suit for libel, trade libel and interference with prospective economic advantage.   They asked for punitive damages of $500,000, and a permanent injunction to stop Lucas' “course of conduct of defamation.”   By January 1990, however, the partnership and the management company substituted new counsel, and in May in reliance on the new counsel's advice, dismissed the entire action.   Lucas filed the present malicious prosecution action in July.

The case came to trial in August 1993.   The trial was bifurcated so the issue of probable cause could be tried first.   After hearing three days of testimony, the trial court concluded that the defendants had probable cause to bring their action.   The judge reasoned that the “essential body of information” on the issue was Lucas' newsletters.  “[A]s to some of the statements made” in them, “there was a tenable, if not colorable, claim.”   The court specifically identified Lucas' comment (in the court's words) “that management was engaging in tactics to threaten huge increases if residents did not agree to five-year leases and statements that all of this conduct is illegal.”   It further pointed to Lucas' statement to his readers, “If you don't know about it, it doesn't mean its not happening” 9 as indicative that “these things are actually happening.”   Finally, the court pointed to statements in the newsletters (again, in the judge's words) “that management refuses to allow new residents who will not sign five-year leases to have a contractual relationship.”   The court concluded a reasonable attorney could “form at least a prima facie opinion that there was a tenable basis upon which to bring a libel action inasmuch as [these] type[s] of statements, if false, would tend to reflect poorly upon the management company” as well as “diminish” the economic relationship it had with the park tenants.   As to the injunction sought by the partnership, the trial judge concluded that the cause of action “on its face” did not “specifically purport to enjoin protected conduct.”   There was “nothing that suggest[ed] that petition conduct or free speech or political conduct [was] to be enjoined.”   Rather, “the injunction merely suggest[ed] that wrongful conduct be enjoined” and “reasonable counsel would not intend that that be read to include constitutionally protected conduct.”   Concluding there was a failure of proof as to the element of probable cause, the court entered judgment in the defendants' favor.   From that judgment Lucas now appeals.

Discussion

We may begin by recognizing the irony in the present lawsuit as it is now postured before us:  Lucas probably would not feel the need to bring a malicious prosecution action against the park owners if their libel and economic interference action against him had been brought after 1992.   That year, the Legislature solved the nagging problem of how to remedy slapp suits by enacting section 425.16 of the Code of Civil Procedure, which provides for attorney fees and costs to the successful defendant in the initial litigation.  (See particularly Code Civ.Proc. § 425.16, subd. (c).) 10  Unfortunately for Lucas, section 425.16 became effective January 1, 1993-more than two and one-half years after the original lawsuit against him had been dismissed.

 Moreover, we cannot avoid the issue of the viability of Lucas' malicious prosecution action by pointing to section 425.16 and declaring the case moot.   While the commentators have generally considered malicious prosecution to be an unsatisfactory remedy for slapp suits (see, e.g., Barker, Common-Law and Statutory Solutions to the Problem of Slapps, 26 Loy.L.A.L.Rev., supra, pp. 434-438;  Brecher, The Public Interest and Intimidation Suits:  A New Approach, 28 Santa Clara L.Rev., supra, pp. 131-132), nothing in section 425.16 (or anywhere else for that matter) indicates that the Legislature wanted to reduce existing remedies against slapp suits, however cumbersome and unsatisfactory those remedies might be.   Indeed, it would be highly anomalous for the Legislature to have done so.  (See Fremont Comp. Ins. Co. v. Superior Court (1996) 44 Cal.App.4th 867, 52 Cal.Rptr.2d 211 [legislation aimed at giving insurers limited immunity to report insurance fraud did not diminish privilege insurers already had to report such fraud].)

We must deal with Lucas' malicious prosecution action on its own terms, and not filtered through the prism of subsequent legislation which, had it been available, certainly would have afforded him a speedier remedy.11

The Initial Lawsuit Here Was Not Objectively Tenable

The leading case on malicious prosecution in California is Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 254 Cal.Rptr. 336, 765 P.2d 498, which noted that the tort is, with good reason, traditionally disfavored. (Id. at p. 872, 254 Cal.Rptr. 336, 765 P.2d 498). Sheldon Appel further stated that the “better means of addressing the problem of unjustified litigation is through the adoption of measures facilitating the speedy resolution of the initial lawsuit.”  (Id. at p. 873, 254 Cal.Rptr. 336, 765 P.2d 498, emphasis added;  see also Bidna v. Rosen (1993) 19 Cal.App.4th 27, 30, 23 Cal.Rptr.2d 251 [“The remedy for egregious conduct in family law court is for the family law bench to nip it in the bud with appropriate sanctions, not to expand tort liability for malicious prosecution to the family law bar.”].)

In Sheldon Appel our Supreme Court settled two basic issues regarding the probable cause element of malicious prosecution.   It held that the absence of probable cause is a question of law for the court, not a question of fact for the jury.  (See id. at p. 875, 254 Cal.Rptr. 336, 765 P.2d 498.)   In addition, it made it clear that the test for probable cause is objective tenability, a phrase used no less than five times in the Sheldon Appel opinion.  (See id. at pp. 881, 254 Cal.Rptr. 336, 765 P.2d 498 [“If the trial court concludes that the prior action was not objectively tenable․”];  id. at pp. 883, 254 Cal.Rptr. 336, 765 P.2d 498 [error in previous Court of Appeal decision was in shifting focus away “from the objective tenability of the prior claim”];  id. at pp. 884, 254 Cal.Rptr. 336, 765 P.2d 498 [“the objective tenability of the prior action is a question of law to be determined by the court”];  id. at pp. 885, 254 Cal.Rptr. 336, 765 P.2d 498 [law seeks to protect “legally tenable claims”];  id. at pp. 886, 254 Cal.Rptr. 336, 765 P.2d 498 [describing standard as “whether any reasonable attorney would have thought the claim tenable”].)

 Tenability means “defensible” or “capable of being maintained against argument or objection.”  (See Webster's Third New Internat. Dict. (1979) at p. 2354.)   The implication of the Supreme Court's use of the word is that no probable cause should be found where reasonable minds can differ, not simply where someone is not likely to win.  (See Sheldon Appel, supra, 47 Cal.3d at pp. 885-886, 254 Cal.Rptr. 336, 765 P.2d 498 [analogizing the objective tenability standard to the “reasonable attorney” test articulated for frivolous appeals under Flaherty 12 ].)  As the Sheldon Appel court apparently wanted to make clear, presenting a successful malicious prosecution claim is a hard row to hoe.   On the other hand, tough as the standard is, Sheldon Appel certainly did not categorically abolish malicious prosecution claims when individuals are sued without an objectively tenable basis.

 In the present case, the objective tenability of the Del Prado partnership's libel and economic interference claims must be tested in light of the activity which gave rise to those claims-Lucas' comments in the midst of a local political struggle over rent control for mobilehome park residents.   Those comments were protected from tort claims by freedoms guaranteed under the federal and state constitutions, including the right to petition, freedom of the press, and freedom of speech.   Indeed, to allude to the Flaherty test as incorporated by Sheldon Appel, no reasonable attorney would press tort claims against Lucas for statements in a newsletter without at least first considering whether he was constitutionally immune from them.

 We need not address freedom of the press or freedom of speech, because it is clear, and should have been clear to any reasonable attorney, that Lucas' comments were protected by his right to petition as guaranteed by the federal constitution.13

The leading United States Supreme Court cases on immunity for activities covered by the petition clause of the First Amendment are Eastern R. Presidents Conference v. Noerr Motor Freight, Inc. (1961) 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 and United Mine Workers of America v. Pennington (1965) 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626.   These two cases form the basis of what is often referred to in the case law as the “Noerr-Pennington doctrine.” 14

In Noerr, a group of railroads conducted a publicity campaign against the trucking industry designed “to create an atmosphere of distaste for the truckers among the general public, and to impair the relationships existing between the truckers and their customers.”  (Id., 365 U.S. at p. 129, 81 S.Ct. at p. 525.)   The truckers struck back with an antitrust suit, charging that the campaign was maliciously designed to destroy them as competitors.   Even though the railroads acted “to destroy the goodwill of the truckers among the public generally and among the truckers' customers particularly,” the antitrust laws could not be applied to the railroads' campaign.  “It is inevitable,” said the court, “whenever an attempt is made to influence legislation by a campaign of publicity, that an incidental effect of that campaign may be the infliction of some direct injury upon the interests of the party against whom the campaign is directed.   And it seems equally inevitable that those conducting the campaign would be aware of, and possibly even pleased by, the prospect of such injury.   To hold that the knowing infliction of such injury renders the campaign itself illegal would thus be tantamount to outlawing all such campaigns.”  (Id. at pp. 142-144, 81 S.Ct. at pp. 532-533.)

In Pennington, a union and a group of large coal companies jointly lobbied the Secretary of Labor for a high minimum wage for employees of contractors selling coal to the TVA;  their success meant that smaller, nonunion coal companies would have a difficult time competing for the TVA contract market.   (Pennington, supra, 381 U.S. at p. 660, 85 S.Ct. at p. 1588.)   In a lawsuit brought by the union concerning certain royalty payments due a retirement fund, a coal company filed a cross claim against the union for conspiracy to restrain trade.   The jury was instructed that the joint lobbying of the Secretary of Labor was legal unless it was done as part of a conspiracy to drive small coal companies out of the business.   The instruction was error, held the high court, because the Noerr decision “shields from the Sherman Act a concerted effort to influence public officials regardless of intent or purpose.”  (Id. at p. 670, 85 S.Ct. at p. 1593, emphasis added.)

 In a word, both cases afforded broad immunity for petitioning activity.   And, while the two cases arose out of antitrust claims, the broad immunity for petitioning activity encompassed by the Noerr-Pennington doctrine in the antitrust context applies to defamation and economic interference claims as well.   As stated in Hi-Top Steel Corp. v. Lehrer (1994) 24 Cal.App.4th 570, 29 Cal.Rptr.2d 646, “While the Noerr-Pennington doctrine was formulated in the context of antitrust cases, it has been applied or discussed in cases involving other types of civil liability [citations], including liability for interference with contractual relations or prospective economic advantage [citations] or unfair competition [citation].   Obviously, the ‘principle of constitutional law that bars litigation arising from injuries received as a consequence of First Amendment petitioning activity [should be applied], regardless of the underlying cause of action asserted by the plaintiffs.’  [Citation.]  ‘[T]o hold otherwise would effectively chill the defendants' First Amendment rights.’  [Citation].” 15  (Id. at pp. 577-578, 29 Cal.Rptr.2d 646.)

There is some doctrinal tension as to how far the outer limits of the broad immunity afforded by Noerr-Pennington for petitioning activity extend.   In a case which never considered Noerr-Pennington at all, McDonald v. Smith (1985) 472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384, the United States Supreme Court held that false statements sent to a variety of public officials in an effort to stop a particular candidate from being appointed a United States Attorney were not immune from a subsequent libel action because the statements were made maliciously.

The McDonald court was clearly reluctant to extend petition clause protections to malicious lies made under the guise of petitioning the government.   The opinion is essentially a reaffirmation of an 1845 decision which concluded a customs inspector could proceed in a libel suit for lies set forth in letters to the President of the United States as long as there was “ ‘express malice.’ ”  (See McDonald, supra, 472 U.S. at p. 484, 105 S.Ct. at pp. 2790-2791, quoting White v. Nicholls (1845) 44 U.S. (3 How.) 266, 291, 11 L.Ed. 591.)

The United States Supreme Court may one day explain how McDonald's rule that the petition clause does not immunize a petitioning party for activity in which there is “express malice” may be reconciled with Pennington's rule that an effort to influence public officials could not be the subject of antitrust liability regardless of intent or purpose.   Perhaps the answer is as simple as the difference between antitrust and libel.

In any event, the Noerr-Pennington doctrine-even in the light of McDonald-forces a reasonable attorney to conclude there is at least a need for actual malice before proceeding in a tort action based on activity within the petition clause.   That need for actual malice is analogous to the traditional and familiar rule of New York Times v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 where a defamation plaintiff is a public figure.   Indeed, the appropriateness of the Sullivan standard to petition clause cases was the very point of Justice Brennan's separate concurring opinion in McDonald:  “There is no persuasive reason for according greater or lesser protection to expression on matters of public importance depending on whether the expression consists of speaking to neighbors across the backyard fence, publishing an editorial in the local newspaper, or sending a letter to the President of the United States.   It necessarily follows that expression falling within the scope of the Petition Clause, while fully protected by the actual-malice standard set forth in New York Times Co. v. Sullivan, is not shielded by an absolute privilege.”  (McDonald, supra, 472 U.S. at p. 490, 105 S.Ct. at p. 2794, emphasis added (conc. opn. of Brennan, J.);   see also Harris v. Adkins (1993) 189 W.Va. 465, 432 S.E.2d 549, 552 [petition right “protected by actual malice standard of New York Times Co. v. Sullivan ․”].)

We now turn to the application of these federal constitutional doctrines in the slapp-suit context.  Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 43 Cal.Rptr.2d 350 recently applied Noerr-Pennington to reach the conclusion that speaking out at a city council meeting was wholly protected by the petition clause.   There, in a twist on the usual pattern, a city sued a developer for economic interference and unfair competition for having encouraged two individuals to speak out at a city council meeting against a competing development project favored by the city.   The Court of Appeal held the developer was entitled to a dismissal under the anti-slapp suit statute, relying on Noerr-Pennington:

“Section 425.16 sets out a mere rule of procedure,[ 16 ] but it is founded in constitutional doctrine.  ‘Those who petition the government are generally immune from ․ liability.’  [Fn. omitted.]  (Real Estate Investors v. Columbia Pictures (1993) 508 U.S. 49 [56, 113 S.Ct. 1920, 1926, 123 L.Ed.2d 611, 621].)  The principle is often referred to as the ‘Noerr-Pennington ’ [fn. omitted] doctrine and, as the recent decision in Real Estate Investors demonstrates, retains full vitality.”  (Ludwig, supra, 37 Cal.App.4th at p. 21, 43 Cal.Rptr.2d 350.)

The Ludwig court went on to explain that unless the petitioning action which gave rise to the suit was both (a) done solely to harass and hinder the other party (as distinct from “securing a favorable governmental result”) and (b) “objectively baseless,” it was protected from litigation.  (Id. at p. 22, 43 Cal.Rptr.2d 350.)  “Absent such a patent lack of merit, an action protected under the First Amendment by the right of petition cannot be the basis for litigation.”  (Ibid., citing Real Estate Investors, supra, 508 U.S. at pp. 61-63 [113 S.Ct. at p. 1929, 123 L.Ed.2d at pp. 623-624].)  Because the city in Ludwig utterly failed to show that the comments of the two citizens who spoke out at the city council meetings were objectively baseless,17 the city had no ground to litigate against the party who arranged for them to do it.  (Ludwig, supra, 37 Cal.App.4th at p. 23, 43 Cal.Rptr.2d 350.)

Perhaps the clearest (and closest to the facts before us), example of Noerr-Pennington in a slapp context is the oft-cited decision of the West Virginia Supreme Court in Webb v. Fury (1981) 167 W.Va. 434, 282 S.E.2d 28, a case decided before McDonald.  Webb, like the present case, involved allegedly libelous statements made in a newsletter about the legality of certain conduct.   There, environmental activists falsely complained to several federal agencies that a certain coal company was violating federal law governing strip mining.   They also published a four-page newsletter, the first page of which contained a map falsely identifying the coal company's mines as the source of pollution of various streams.   The coal company sued the activists for libel;  the activists claimed that their activities, including their newsletter, were privileged under the petition clause.  (See id., 282 S.E.2d at pp. 31-33.)

The court agreed with the activists.   It held that the newsletter was a “petitioning activity,” relying on the facts in the Noerr case itself-which also involved a publicity campaign, albeit on a somewhat bigger scale than the environmentalists' humble efforts.  (See Webb, supra, 282 S.E.2d at p. 41.)   The court noted that Noerr-Pennington had been applied by a series of federal courts to communications addressed to the public.  (Id., 282 S.E.2d at pp. 41-42, citing and discussing Mark Aero, Inc. v. Trans World Airlines, Inc. (8th Cir.1978) 580 F.2d 288, 297;  Missouri v. National Organization For Women (8th Cir.1980) 620 F.2d 1301, 1314;  Franchise Realty Interstate Corp. v. San Francisco Local Joint Executive Board of Culinary Workers (9th Cir.1976) 542 F.2d 1076, 1083.)   The Webb court then declared, “It seems clear to us that the statements published by the petitioners come within the immunity conferred under Noerr-Pennington.   The portions of the newsletter which are reproduced in the respondent's complaint indicate an exhortation to the public to demonstrate concern for rapidly expanding surface mining and the resulting pollution of the area's waters.   It is apparent to us that the newsletter here should be viewed in the context of a public campaign to ‘influence the passage and enforcement of laws.’ ”  (Webb, supra, 282 S.E.2d at p. 42.) 18

Webb, as we have noted, did not have the benefit of McDonald, and therefore may have erred in suggesting that petition clause activity enjoys absolute immunity, instead of the qualified “actual malice” immunity afforded under the standard set out in New York Times v. Sullivan.  (See Harris, supra, 432 S.E.2d at p. 552.19 )  Even so, there is no question of the soundness of the decision on the applicability of the petition clause in the first place.   The publishing of a newsletter directed against what was (falsely) perceived to be nefarious activities of coal companies was a clear attempt to seek to redress a grievance.20

In the present case, it also is ineluctably clear that Lucas' various charges against the new owners of the mobilehome park, and his exhortations against signing long-term leases, were even more a part of a campaign protected by the petition clause than the railroads' generalized anti-trucking campaign in Noerr, or the accusations of coal company malfeasance made by the environmentalists' newsletter in Webb.   Here, much more than in either Noerr or Webb, there was specific pending legislation to which the petitioner's efforts were palpably directed.   Lucas' remarks in that campaign were nothing less than an attempt to rally his troops for battle and steel them against the blandishments of the enemy.

The core error of the trial court was to ignore context.   As the trial court's own remarks indicated, it considered Lucas' statements in a vacuum and without regard to their role in the bitter and highly charged local political battle then being fought over a specific piece of controversial legislation.21

We need not explore the degree to which Lucas' comments were either absolutely immunized under the Noerr-Pennington doctrine, or, as seems more likely, were protected under a New York Times v. Sullivan actual malice standard.   Even given the latter standard, no reasonable lawyer could have concluded that libel and economic interference claims were viable without actual malice.   On top of that, no reasonable lawyer would ever have thought that comments in a newsletter bearing on a rent control controversy and directed against “greedy” landlords could ever be the object of prior restraint via an injunction.  (E.g., Citizens Against Rent Control v. City of Berkeley (1981) 454 U.S. 290, 299, 102 S.Ct. 434, 438-439, 70 L.Ed.2d 492 [striking down city campaign limit ordinance as imposing a “significant restraint” on anti-rent control group's freedom of expression];  see generally Alexander v. U.S. (1993) 509 U.S. 544, 553-554, 113 S.Ct. 2766, 2773, 125 L.Ed.2d 441 [“we have interpreted the First Amendment as providing for greater protection from prior restraints than from subsequent punishments”];  Madsen v. Women's Health Center, Inc. (1994) 512 U.S. 753, 797-798, 114 S.Ct. 2516, 2541, 129 L.Ed.2d 593, 627-628 (dis. opn. of Scalia, J.) [listing numerous Supreme Court decisions showing that the high court has “repeatedly struck down speech-restricting injunctions”].)  From the enclosure movement in 18th Century Scotland to the insufferable morality plays favored by the Chinese government during the Cultural Revolution of the 1960's, sallies against “greedy” landlords who heartlessly turn people out of their homes are part of the very essence of political and ideological commentary.   It was error for the trial court to conclude that Lucas' comments were actionable merely if they could be shown to be false.22

“The burden of proving ‘actual malice,’ ” said the United States Supreme Court in Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 511, footnote 30, 104 S.Ct. 1949, 1965, footnote 30, 80 L.Ed.2d 502, “requires the plaintiff to demonstrate with clear and convincing evidence that the defendant realized his statement was false or that he subjectively entertained serious doubt as to the truth of his statement.”   Moreover, actual malice as part of the New York Times v. Sullivan rule is not entirely a question of fact for the trier of fact-judges must exercise independent judgment to insure that the evidence is sufficiently potent to justify any finding of actual malice.   As the court said in Bose:  “The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact.   Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of ‘actual malice.’ ”  (Bose, supra, 466 U.S. at p. 511, 104 S.Ct. at p. 1965, italics added.)

We are spared the task, imposed on all judges by the Bose decision, of independently determining whether there exists here a sufficient quantum of proof of actual malice to have made the libel and economic interference actions objectively tenable.   In the present case, the Del Prado partners did not even attempt to present “clear and convincing proof of ‘actual malice.’ ”   Their efforts were directed below, as they are before this court, at trying to demonstrate that the actual malice standard was not necessary because their initial lawsuit involved only private communications between private parties.   Given the absence of such proof, the trial judge should have denied their nonsuit motion.

Conclusion

The judgment is reversed.   Lucas is to recover his costs on appeal.

FOOTNOTES

1.   See Barker, Common-Law and Statutory Solutions to the Problem of Slapps (1993), 26 Loy.L.A.L.Rev. 395, 431:  “SLAPP-backs are separate countersuits or counterclaims to SLAPPs, usually for abuse of process or malicious prosecution, by SLAPP defendants.”

2.   The active general partners in the Del Prado limited partnership also held interests in 14 other mobilehome parks.

3.   Here is the text of Lucas' comments, taken from the complaint that would later be filed against him:  “APAC [Anaheim Political Action Committee] and GSMOL [Golden State Mobile Home Owners League] have urged that NO homeowners sign 5-year leases.   They only benefit Park owners and remove you from Rent Stabilization benefits NOW.   If anyone loses a sale of his mobilehome because management refuses to allow new residents who will not sign a 5-year lease, management is liable for damages.   You and your realtor keep close watch.”

4.   Here is the text from the December 7 newsletter as set forth in the partnership's complaint:“The new info I have so far is:  rents are $475/mo for new buyers!   That's a 16.7% increase!   Is that what you want?   It also appears Management is not offering any options to new buyers except 5-yr leases with 9% yearly increases and 10% afterward.   Further, some tactics are to threaten huge increases if residents don't agree to 5-yr leases.   All of this is illegal.   Don't fall for it!   If you are involved in any of this let us know right away or call GSMOL (members only.   JOIN if not a member).   Get a copy of latest Californian (GMSOL newspaper) for details.   Also, anyone who paid a security deposit, and has been here over a year can request a refund.   I have copies you can use.  [¶] I can't stress strongly enough that this struggle with the new owners is FOR REAL and you each one better decide now to support your Park.   Just because you don't know all that's happening to mobilehome park [sic ], doesn't mean it is not happening!   Remember, together we stand, divided we get kicked out of our homes!”

5.   Here is the text as set forth in the partnership's complaint:“RENT INCREASE [¶] If you have been able to get your breath after that outrageous $75 (18.4%!) rent increase on top of our 9.4% increase last July, here is the current plan.   Send a photocopy to our friend Mayor Hunter and to our so-called City Council.   Express your thots [sic] freely to them.   Be sure to compliment Mayor Hunter for backing our position.   Castigate severely the balance of the Council for their delaying tactics.   Assure Mr. Ehrle that his political career is certainly now in jeopardy for ‘wimping’ on us as he did.   Telephone them until you get thru;  let them know there are real live people who are being bankrupt for the benefit of greedy park owners.   Be sure the letters get to them in the next week or so․”

6.   Here is the text from the partnership's later complaint:“MANAGEMENT MEETING:  ․ They claim some residents in our park are ready to sign leases.   Be VERY cautious, and discuss it with one of the Board FIRST.   They also claim the rent stabilization ordinance is unconstitutional, which it is NOT!”

7.   Here is the text from the partnership's later complaint:“You may be interested to know, the Anaheim Bulletin reports that Councilman Tom Daly (who made the motion to deny our initiative) received about $1,200 in campaign contributions from park owners.   Now who do you suppose he is going to swing his vote toward?”

8.   Here is the text from the partnership's later complaint:“ ․ Items of interest about the City Council:  Councilmember Tom Daly, who moved to keep the initiative, collected approx $4,000 for his campaign from Park owner supported organizations, received $1,800 after he was elected!   Councilmember Irv Pickler, who also voted against us, also collected approx $4,000 for his campaign, $700 after election from the same sources․”

9.   Apparently referencing a statement in the December 7, 1988 newsletter.  (See footnote 4, above.)

10.   All further statutory references are to the Code of Civil Procedure, unless otherwise specifically designated.

11.   Slapp suits have received considerable attention from the legal professoriate.   We will leave to the law reviews the question of whether the prospect of compensatory and punitive damages after a protracted malicious prosecution action ultimately makes for a better deterrent against slapp suits than speedy recovery of attorney fees and costs in the initial litigation.

12.   See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, 183 Cal.Rptr. 508, 646 P.2d 179.

13.   Lucas' opening brief asserts that his statements were protected not only under the federal petition clause, but under several other legal theories as well, including the “common interest” privilege enunciated in section 47, subdivision (c) of the Civil Code, the operation of the state and federal freedom of speech clauses, and the state petition clause.   Our opinion is confined to the federal petition clause.   We need not address the “independent state grounds” question of whether the California Constitution (see Cal. Const., art. 1, § 3) provides greater rights under its petition clause than does the federal Constitution.   As we explain, the United States Constitution afforded Lucas sufficient protection for the statements in his newsletter to render the claims against him wholly untenable.

14.   It is enough, for purposes of Government Code section 68081, that Lucas has raised the issue of whether his statements were immune under the federal petition clause, even though neither side has addressed the petition clause question in the precise terms of these two leading cases.   The scope of the federal petition clause is the “issue” in this case, not the case law interpreting it.   In basing a “decision” on an “issue” under Government Code section 68081, courts cannot be limited only to cases which are cited by the parties, particularly when there are cases from the federal or state Supreme Courts which bear directly on the issue, and particularly where the issue is constitutional in dimension.   Any other result would infringe on the judicial power entrusted by the Constitution to courts (see Cal. Const., art. 6, § 1) because private litigants could then dictate the nature of a court's analysis, even to the point of manipulating a patently unconstitutional result, by the inadvertent (and sometimes even advertent) omission from their briefs of relevant case law.

15.   Perhaps the Noerr-Pennington doctrine would be better thought of as legal shorthand for the scope of immunity which arises from petition clause activity rather than as a strict rule of two cases.   In an antitrust case involving an attempt to create a de facto legal monopoly for a certain poker club, Blank v. Kirwan (1985) 39 Cal.3d 311, 321, 216 Cal.Rptr. 718, 703 P.2d 58, our Supreme Court observed that Noerr-Pennington rested on “statutory interpretation,” but was “reinforced” by “the First Amendment right to petition the government.”  (See also id. at p. 321, fn. 3, 216 Cal.Rptr. 718, 703 P.2d 58.)

16.   That point may be debatable:  Section 425.16 requires that a suit which arises out of an act stemming from the free speech or petition right must have “demonstrable merit” to get to a jury;  other suits are not so encumbered.   Whether California's anti-slapp statute is, in effect, a new rule of substantive law, singling out for special statutory protection the exercise of certain first amendment rights, is another question we leave for the law reviews.

17.   Or, we might add, apropos our discussion of McDonald, constituted malicious libel.

18.   Although Justice Neely dissented in Webb, the remarkable feature about his dissent is that it is, in essence, a lament that West Virginia had no anti-slapp statute which might have prevented his colleagues from the temptation, as he saw it, to overstate the Noerr-Pennington doctrine.   See Webb, supra, 282 S.E.2d at p. 43 (dis. opn. of Neely, J.):  “The majority appears to establish blanket immunity for false publications, even if published with the knowledge that the statements are false, and blanket immunity for tortious interference with business activity so long as this interference masquerades as an act of petitioning the government.   At the same time I am not satisfied with the posture of the respondent in this case, DLM Coal Company, that a mere allegation of knowing, willful falsehood is sufficient to precipitate a disastrously expensive law suit in all its terror.   Hence my concern becomes one of how to fashion appropriate procedures that will address the overall equities of the situation.”   Justice Neely eventually proposed “an appropriate procedure” that very much resembles California's anti-slapp statute.   He would require a preliminary hearing “in which the trial judge will decide whether the plaintiff has shown enough facts to proceed with the case.”   In the event the defendant won at trial on the merits, he or she would be able to recover the full costs of defense “without exception.”  (See id. at p. 47, 282 S.E.2d 28.)

19.   Thus Harris overruled Webb “to the extent” that Webb indicated there was “absolute privilege for intentional and reckless falshehoods” as distinct from protection “by the actual malice standard of New York Times v. Sullivan ․”  (Harris, supra, 432 S.E.2d at p. 552.)

20.   It may be that the practical result of the Noerr-Pennington doctrine after McDonald is to extend the New York Times v. Sullivan actual malice protection to situations which might not otherwise enjoy that protection under a free speech or free press standard.

21.   Context is one of the central ideas to the understanding of words, as cases as seemingly disparate as Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1265, 10 Cal.Rptr.2d 538, 833 P.2d 545 (ambiguity in insurance policy cannot be found in the abstract;  language must be considered in context) and Moldea v. New York Times (D.C.Cir.1994) 22 F.3d 310, 311 (reversing prior opinion in libel case which upheld libel claim against First Amendment challenge because prior opinion failed to take sufficient account of fact that the allegedly libelous statements were made in context of book review) illustrate.

22.   We need not address a separate issue, which is whether Lucas' statements were even susceptible to being judged either true or false.  (Cf. Philadelphia Newspapers, Inc. v. Hepps (1986) 475 U.S. 767, 776, 106 S.Ct. 1558, 89 L.Ed.2d 783 (where factfinding process cannot conclusively resolve whether speech is true or false, the burden which is properly on the private plaintiff in a libel action to show falsity will mean that the plaintiff will not be able to prevail “despite the fact that, in some abstract sense, the suit is meritorious”).)   The fact-opinion problem in First Amendment jurisprudence is an ocean by itself.   Recent developments in that body of law in the wake of Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 are summarized in Moldea v. New York Times, supra, 22 F.3d 310, 313-316.

SILLS, Presiding Judge.

CROSBY and WALLIN, JJ., concur.

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