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TERRIE HUTTON,
Plaintiff and Respondent,
v.
HERBERT HAFIF et al.,
Defendants and Appellants.
B162572
(Los Angeles County
Super. Ct. No. BC241082)

Filed 5/11/04 Hutton v. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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
TERRIE HUTTON,
Plaintiff and Respondent,
v.
HERBERT HAFIF et al.,
Defendants and Appellants.
B162572
(Los Angeles County
Super. Ct. No. BC241082)
APPEAL from an order of the Superior Court of Los Angeles County, Paul
Gutman, Judge. Reversed with directions.
Cheong, Denove, Rowell & Bennett, John D. Rowell for Plaintiff and Respondent.
Law Offices of Herbert Hafif, Jeanne A. Sterba; and Law Offices of James J.
Moneer, James J. Moneer for Defendants and Appellants.
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I. INTRODUCTION
Herbert Hafif, Cynthia D. Hafif, Gregory K. Hafif, and the Law Offices of Herbert
Hafif (the Hafif firm) (defendants), appeal from an order denying their special motion to
strike (Code Civ. Proc.,1 § 425.16) a malicious prosecution action brought by Terrie
Hutton (plaintiff). The present lawsuit arose after an action brought by defendants was
dismissed pursuant to section 425.16. We reverse the order and direct the trial court to
grant the section 425.16 motion in the present lawsuit.
II. BACKGROUND
A. The First Lawsuit
Plaintiff originally sued Herbert Hafif and the Hafif firm for legal malpractice on
June 29, 1993. Plaintiff’s legal malpractice action against Herbert Hafif and the Hafif
firm was dismissed after a demurrer to her second amended complaint was sustained
without leave to amend. Los Angeles Superior Court Judge Melvin Grover imposed
$25,000 in sanctions against plaintiff and her attorney, Sassoon Sales, for filing in bad
faith a frivolous lawsuit. The judgment of dismissal and the sanctions order were
reversed on appeal. Division Two of the Court of Appeal for this appellate district found
plaintiff had stated a fiduciary duty breach cause of action. (Hutton v. Hafif (Aug. 20,
1997, B088405) [nonpub. opn.].) According to the superior court’s online records,
plaintiff’s legal malpractice action was later dismissed for failure to prosecute. (http:
1 All further statutory references are to the Code of Civil Procedure unless otherwise
noted.
3
//www.lasuperiorcourt. org/ CivilCaseSummary/ casesummary.asp? Referer =
index&divCode = CV & Case = BC084002Source // CAS.)
B. The Second Lawsuit
In the second lawsuit, Law Offices of Herbert Hafif v. Killingsworth (Super Ct.
Orange County, 1996, No. 729347), defendants alleged plaintiff had conspired with
others to coerce financial concessions from the Hafif firm by bringing specious legal
malpractice lawsuits against it and instigating negative publicity about it. The original
Killingsworth complaint, filed on May 6, 1994, asserted causes of action against plaintiff
for fraud, criminal profiteering, tortious interference with business relations, slander and
libel, and privacy invasion. The causes of action asserted against plaintiff in the second
amended complaint in Killingsworth, filed on October 13, 1994, were for malicious
prosecution, defamation, and tortious interference with business relations.
In addition to the fact that plaintiff filed a legal malpractice action against Mr.
Hafif and his firm, which the trial court found to be frivolous, the principle conspiracy
evidence against her consisted of diaries she had kept. The diaries purportedly document
plaintiff’s contacts with other members of the alleged conspiracy. Orange County
Superior Court Judge Leonard Goldstein denied plaintiff’s summary judgment motion in
the second lawsuit. Judge Goldstein found there were triable issues of material fact as to
plaintiff’s participation in the alleged conspiracy based on her diaries. Plaintiff’s
subsequent special motion to strike pursuant to section 425.16 was granted. In
connection with that motion, Orange County Superior Court Judge Robert E. Thomas
ruled that plaintiff’s diaries were inadmissible. Division Three of the Court of Appeal for
the Fourth Appellate District affirmed Judge Thomas’s order granting the special motion
to strike. (Law Offices of Herbert Hafif v. Soukup (April 27, 2000, G020977) [nonpub.
opn.].) The Court of Appeal held in part: “The only evidence potentially showing merit
in Hafif’s claims came from Hutton’s diaries, which were prepared for transmission to
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her lawyer. The trial court properly concluded they were inadmissible.” (Id., typed opn.
at p. 6.) As discussed below, the record before us shows plaintiff had prepared
summaries of her diary entries—but not the diaries themselves—for Mr. Sales’s use.
C. The Third Lawsuit
On November 30, 2002, plaintiff filed the present action alleging the second
lawsuit, the Killingsworth matter, was maliciously prosecuted against her. On July 20,
2001, defendants filed a special motion to strike the present malicious prosecution action.
Defendants presented evidence that: a former associate had left the Hafif firm, had taken
clients with him, and had then sought to coerce defendants to relinquish claims for fees
and costs in connection with those matters; further, numerous frivolous legal malpractice
claims by former clients and State Bar of California complaints had been subsequently
filed against them and negative publicity disseminated, in close proximity to each other;
there was communication among the alleged conspirators, all former clients or employees
of defendants; and a lawyer who represented some of the former clients in their legal
malpractice actions subsequently apologized to defendants. Defendants argued in part
that probable cause was established as a matter of law because Judge Goldstein had
denied plaintiff’s summary judgment motion in the second lawsuit, the Killingsworth
action. Plaintiff opposed defendant’s section 425.16 motion in this lawsuit. She
presented evidence contradicting defendants’ claim she had participated in a conspiracy
against them. The special motion to strike was denied by Judge Alban I. Niles.
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III. DISCUSSION
A. General Principles
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, disapproved on another point in
Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 68, fn. 5.) Section
425.16 authorizes a court to summarily dismiss such meritless suits. The purpose of the
statute is set forth in section 425.16, subdivision (a), as follows: “The Legislature finds
and declares that there has been a disturbing increase in lawsuits brought primarily to
chill the valid exercise of the constitutional right of freedom of speech and petition for
the redress of grievances. The Legislature finds and declares that it is in the public
interest to encourage continued participation in matters of public significance, and that
this participation should not be chilled through abuse of the judicial process . . . .” Under
section 425.16, any cause of action against a person “arising from any act . . . in
furtherance of the . . . right of petition or free speech . . . ,” in connection with a public
issue must be stricken unless the court finds a “probability” that the plaintiff will prevail
on whatever claim is involved. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer
Cause, Inc., supra, 29 Cal.4th at p. 58; Dowling v. Zimmerman (2001) 85
Cal.App.4th 1400, 1415.)
Section 425.16, subdivision (e), defines acts in furtherance of free speech or
petition rights in connection with a public issue by setting forth four categories of
conduct to which the statute applies. Section 425.16, subdivision (e) provides: “As used
in this section, ‘act in furtherance of a person’s right of petition or free speech under the
United States or California Constitution in connection with a public issue’ includes: (1)
any written or oral statement or writing made before a legislative, executive, or judicial
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proceeding, or any other official proceeding authorized by law; (2) any written or oral
statement or writing made in connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official proceeding authorized by
law; (3) any written or oral statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest; (4) or any other conduct in
furtherance of the exercise of the constitutional right of petition or the constitutional right
of free speech in connection with a public issue or an issue of public interest.” A specific
public issue showing is required for acts claimed to fall under section 425.16,
subdivisions (e)(3) and (e)(4), but not for acts claimed to fall under subdivisions (e)(1)
and (e)(2). (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106,
1111-1123; Du Charme v. International Brotherhood of Electrical Workers, Local 45
(2003) 110 Cal.App.4th 107, 112-114.)
When a special motion to strike is made, the trial court must consider two
components. First, the court must consider whether the moving defendant has carried its
burden of showing that the lawsuit falls within the purview of section 425.16, i.e., arises
from protected activity. The moving defendant has the initial burden of establishing a
prima facie case that the plaintiff’s cause of action arises out of the defendant’s actions in
the furtherance of petition or free speech rights. (§ 425.16, subd. (b)(1); Equilon
Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67; Mission Oaks Ranch,
Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 721, overruled on another
point in Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1123, fn.
10.) The moving defendant has no obligation to demonstrate that the plaintiff’s
subjective intent was to chill the exercise of constitutional speech or petition rights.
(Navellier v. Sletten (2002) 29 Cal.4th 82, 88; Equilon Enterprises v. Consumer Cause,
Inc., supra, 29 Cal.4th at p. 66.) Nor must a defendant show that the action had the effect
of chilling free speech or petition rights. (Navellier v. Sletten, supra, 29 Cal.4th at p. 88;
City of Cotati v. Cashman (2002) 29 Cal.4th 69, 75.)
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Second, once the defendant meets this burden, the obligation shifts to the plaintiff
to establish a probability that it will prevail on the merits. (§ 425.16, subd. (b)(1);
Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67; Briggs v. Eden
Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115.) As to the second step of
the weighing process, the Supreme Court in Wilson v. Parker, Covert & Chidester (2002)
28 Cal.4th 811, 821, described the trial judge’s duties as follows: “In deciding the
question of potential merit, the trial court considers the pleadings and evidentiary
submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the
court does not weigh the credibility or comparative probative strength of competing
evidence, it should grant the motion if, as a matter of law, the defendant’s evidence
supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for
the claim. [Citation.]” (Orig. italics; see Paul for Council v. Hanyecz (2001) 85
Cal.App.4th 1356, 1365, disapproved on another point in Equilon Enterprises v.
Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) We conduct independent review
of the trial court’s decision. (Mission Oaks Ranch, Ltd. v. County of Santa Barbara,
supra, 65 Cal.App.4th at p. 721; Paul for Council v. Hanyecz, supra, 85 Cal.App.4th at p.
1364.)
B. Defendant’s Initial Burden
Here, defendants met their initial burden of establishing a prima facie case that
plaintiff’s causes of action arose out of their actions in the furtherance of their petition
rights. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc., supra, 29
Cal.4th at p. 67; Mission Oaks Ranch, Ltd. v. County of Santa Barbara, supra, 65
Cal.App.4th at p. 721.) Plaintiff’s malicious prosecution claim arises out of defendants’
filing and prosecution of the second lawsuit, the Killingsworth action. (Jarrow
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733-741; Navellier v. Sletten, supra,
29 Cal.4th at pp. 89-95.)
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C. Plaintiff’s Burden
We turn to the question whether plaintiff established a probability that she will
prevail on the merits. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause,
Inc., supra, 29 Cal.4th at p. 67; Briggs v. Eden Council for Hope & Opportunity, supra,
19 Cal.4th at p. 1115.) The California Supreme Court has explained: “[I]n order to
establish a cause of action for malicious prosecution . . . a plaintiff must demonstrate ‘that
the prior action (1) was commenced by or at the direction of the defendant and was
pursued to a legal termination in [the plaintiff’s] favor [citations]; (2) was brought
without probable cause [citations]; and (3) was initiated with malice [citations].’
[Citations.]” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871-872;
accord, Brennan v. Tremco Inc. (2001) 25 Cal.4th 310, 313.) Whether probable cause
exists is a question of law. (Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p.
817; Morrison v. Rudolph (2002) 103 Cal.App.4th 506, 512, disapproved on another
point in Zamos v. Stroud (2004) 32 Cal.4th 958, ____ [12 Cal.Rptr.3d 54, 65].)
Judge Goldstein’s denial of plaintiff’s summary judgment motion in the second
lawsuit, the Killingsworth action (in which she was a defendant) on the grounds there
were triable issues of material fact established that probable cause existed as a matter of
law. (Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 382-385; accord,
White v. Lieberman (2002) 103 Cal.App.4th 210, 217-218; cf. Wilson v. Parker, Covert
& Chidester, supra, 28 Cal.4th at pp. 816-826 [trial court’s denial of defendant’s section
425.16 motion to strike established probable cause].) As the Supreme Court explained in
Wilson, “Denial of a defense summary judgment motion on grounds that a triable issues
exists . . . while falling short of a determination of the merits, establishes that the plaintiff
has substantiated, or can substantiate, the elements of his or her cause of action with
evidence that, if believed, would justify a favorable verdict.” (Wilson v. Parker, Covert
& Chidester, supra, 28 Cal.4th at p. 824; accord Bealmear v. So. Cal. Edison Co. (1943)
22 Cal.2d 337, 340.)
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Plaintiff contends, but has not established, that the summary judgment denial in
the second lawsuit, the Killingsworth action, was obtained by material misrepresentations
of fact with respect to her diaries. Plaintiff claims defendants were in possession of her
diary entries, on which they relied in opposing that summary judgment motion, only
through a court reporter’s inadvertent error, not by any legitimate means, and in violation
of a stipulation among counsel; therefore, defendants’ authentication of the evidence
rested on material misrepresentations of fact. Defendants assert plaintiff was ordered to
produce the diaries in the second lawsuit; however, their citation to the record does not
support that claim. In any event, the record before us does not support plaintiff’s claim.
At her deposition in the underlying action, on April 24, 1995, plaintiff said she had
prepared summaries of her diary entries—but not the diaries themselves—for “the use
of” her attorney. In addition, there was an indication the summaries reflected
communications between plaintiff and her then attorney, Mr. Sales. Counsel agreed the
summaries would not be attached as an exhibit to plaintiff’s deposition transcript until
they had resolved admissibility issues. There is no evidence the diary entries, as opposed
to the summaries, were not made at the time of the events recorded therein. Moreover,
later, by way of a declaration dated October 5, 1995, plaintiff herself introduced her diary
entries as evidence in the second lawsuit, the Killingsworth action. Judge Goldstein
subsequently relied on the diaries in denying plaintiff’s summary judgment motion in the
second lawsuit, the Killingsworth action, on February 6, 1996. On this record, we cannot
conclude that the order denying summary judgment in the second lawsuit, the
Killingsworth action, was obtained by material misrepresentations of fact. Judge
Goldstein, who ruled on the summary judgment motion in the underlying case, made no
such finding.
We are mindful that Judge Thomas granted plaintiff’s section 425.16 motion to
strike in the second lawsuit, the Killingsworth action, based on the exclusion of the very
evidence on which Judge Goldstein had relied in denying her summary judgment motion.
Judge Thomas’s ruling granting the special motion to strike in the second lawsuit, the
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Killingsworth action, did not undermine the effect of the Judge Goldstein’s order denying
summary judgment in terms of the probable cause analysis. As the Supreme Court held
in Wilson, “Claims that have succeeded at a hearing on the merits, even if that result is
subsequently reversed by the trial or appellate court, are not so lacking in potential merit
that a reasonable attorney or litigant would necessarily have recognized their
frivolousness.” (Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 818;
accord, Bealmear v. So. Cal. Edison Co., supra, 22 Cal.2d at p. 340.) As noted above,
plaintiff submitted evidence contradicting defendants’ allegations in an effort to establish
evidentiary support for her malicious prosecution claim in this lawsuit. Defendants’
showing they had probable cause to bring the underlying action, however, defeats that
evidence. (Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821; see Paul
for Council v. Hanyecz, supra, 85 Cal.App.4th at p. 1365.) Accordingly, the order
denying defendants’ section 425.16 special motion to strike must be reversed.
IV. DISPOSITION
The order denying the special motion to strike pursuant to Code of Civil
Procedure section 425.16 brought by defendants, Herbert Hafif, the Law Offices of
Herbert Hafif, Cynthia D. Hafif, and Gregory K. Hafif, is reversed. The trial court is
directed to enter a new order granting the special motion to strike. Defendants, Herbert
Hafif, the Law Offices of Herbert Hafif, Cynthia D. Hafif, and Gregory K. Hafif, are to
recover their costs on appeal from plaintiff, Terrie Hutton. Any attorney fee motion must
be pursued in compliance with rule 870.2(b) of the California Rules of Court.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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TURNER, P.J.
We concur:
ARMSTRONG, J.
MOSK, J.