Church of Scientology v. Wollersheim (1996)
42 Cal.App.4th 628 , 49 Cal.Rptr.2d 620
[Nos. B084686, B086063.
Second Dist., Div. Three.
Feb 1, 1996.]
CHURCH OF SCIENTOLOGY OF CALIFORNIA, Plaintiff
and Appellant, v. LAWRENCE WOLLERSHEIM, Defendant and Respondent.
(Superior Court of Los Angeles County, No.
BC074815, Edward Y. Kakita, Judge.)
(Opinion by Aldrich, J., with Klein, P.
J., and Croskey, J., concurring.)
Rabinowitz, Boudin, Standard, Krinsky & Lieberman, Eric M. Lieberman,
Michael Ludwig, Moxon & Bartilson, Kendrick L. Moxon and Laurie J. Bartilson
for Plaintiff and Appellant.
Hagenbaugh & Murphy, Daniel A. Leipold and Mark Goldowitz for Defendant
John C. Barker, Elizabeth Pritzker, Gray, Cary, Ware & Freidenrich,
Guylyn R. Cummins, Parker, Chapin, Flattau & Klimpl and Herbert L. Rosedale
as Amici Curiae.
Plaintiff and appellant Church of Scientology (the Church) appeals from
the order of the trial court granting the motion of defendant and respondent
[42 Cal.App.4th 636] Lawrence Wollersheim (Wollersheim) pursuant to Code
of Civil Procedure section 425.16 (hereinafter, section 425.16) to dismiss
the Church's complaint against him. The dismissed complaint attacked the
judgment Wollersheim had obtained against the Church in a prior action (the
prior action). fn. 1 Section 425.16 was adopted in 1992 to deter and prevent
so-called SLAPP (Strategic Lawsuits Against Public Participation) suits.
The Church contends the trial court erred in granting the motion because
its action against Wollersheim is not a SLAPP suit as defined by section
425.16. The Church also contends the Church demonstrated the probability
of the success of its complaint and therefore the motion should have been
denied in any event. Furthermore, the Church contends, the amount awarded
for attorney fees was excessive.
We find the motion to dismiss was properly granted and substantial evidence
supports the award of attorney fees. We therefore affirm the judgments.
Factual and Procedural Background
The Prior Action
The procedural history of this litigation spans more than 15 years. Wollersheim
filed his original action against the Church on July 28, 1980. Wollersheim,
a former member of the Church, had alleged the Church intentionally and
negligently inflicted severe emotional injury on him through certain practices,
including "auditing," "disconnect," and "fair game."
During the pendency of that lawsuit Scientology affiliates (Scientology)
sued Wollersheim, his counsel, and his expert witnesses in the prior action
in a RICO (Racketter Influenced and Corrupt Oranizations Act) action in
the federal district court in Los Angeles. Thereafter, Scientology petitioned
the Ninth Circuit Court of Appeals to disqualify the entire United States
District Court for the Central District of California. In an unprecedented
ruling the Ninth Circuit struck the motion from its records. Thereafter
the RICO action was dismissed by the court. Scientology once again appealed
to the Ninth Circuit Court of Appeals which affirmed the dismissal. (Religious
Technology Center v. Wollersheim (9th Cir. 1992) 971 F.2d 364; cert. den.
(1987) 479 U.S. 1103 [94 L.Ed.2d 187, 107 S.Ct. 1336].)
In March 1986, Judge Ronald Swearinger, the superior court judge assigned
as the trial judge in the prior action, ordered the Church to produce its
[42 Cal.App.4th 637] "auditing" and "pre-clear" files
on Wollersheim. Thereafter, the Church sued Judges Alfred Margolis (who
had made previous pretrial rulings in the case) and Swearinger and the entire
Los Angeles Superior Court in federal district court. (Church of Scientology
v. Superior Court, (U.S. Dist. Ct. (C.D.Cal.), No. CV 86-1362ER.) This suit
was dismissed by the court in November 1986.
After much discovery and several petitions for writs of mandate to the
Court of Appeal brought by the Church, the prior action went to trial in
superior court on February 18, 1986, before Judge Swearinger. After five
months of trial the jury returned its verdict in favor of Wollersheim on
July 22, 1986. It assessed compensatory damages in the sum of $5 million
and punitive damages in the sum of $25 million against the Church. On August
8, 1986, the Church filed its motion for new trial and for judgment notwithstanding
the verdict both of which were denied on September 18, 1986, after three
days of oral argument. The Church thereafter appealed to the Second District
Court of Appeal which reversed as to the cause of action for negligent infliction
of emotional injury, affirmed the judgment as to the cause of action for
intentional infliction of emotional injury and modified the judgment to
reduce the compensatory damages to $500,000 and the punitive damages to
$2 million. (Wollersheim v. Church of Scientology, supra, 212 Cal.App.3d
872.) The Church then petitioned the California Supreme Court for review
which was denied. Upon the Church's petition for a writ of certiorari, the
United States Supreme Court vacated the judgment of the Court of Appeal
and remanded to that court for reconsideration in light of the Supreme Court's
ruling in Pacific Mutual Life Insurance Co. v. Haslip (1991) 499 U.S. 1
[113 L.Ed.2d 1, 111 S.Ct. 1032]. (Church of Scientology of California v.
Wollersheim (1991) 499 U.S. 914 [113 L.Ed.2d 234, 111 S.Ct. 1298].)
On remand the Court of Appeal adhered to its original decision, affirming
the judgment subject to a remittitur. (Wollersheim v. Church of Scientology
fn. * (Cal.App.).) Once again the Church petitioned the California Supreme
Court for review and on July 23, 1992, review was granted. However, on July
15, 1993, following the United States Supreme Court's decision in TXO Production
Corp. v. Alliance Resource Corp. (1993) 509 U.S. 443 [125 L.Ed.2d 366, 113
S.Ct. 2711], the California Supreme Court dismissed its prior grant of review.
The Church's subsequent petition for writ of certiorari to the United States
Supreme Court was denied on March 7, 1994.
The Instant Litigation
While its appeal in the prior action was pending before the California Supreme
Court, the Church filed this action on February 16, 1993, seeking to [42
Cal.App.4th 638] set aside the judgment Wollersheim had obtained against
the Church on July 22, 1986. The complaint alleged that newly discovered
evidence demonstrated that the trial judge appeared to, or did, harbor actual
malice and prejudice against the Church at the time of the trial and may
have conveyed prejudicial information to the jury, either directly or indirectly.
The "newly discovered evidence" alleged in the complaint consisted
of the following: posttrial interviews with jurors by the Church's attorneys
revealed that "the jurors 'believed' that they were being followed
by members of the [Church]." Juror Terri Reuter stated that "the
jury had been told by 'unnamed court personnel,' whom she refused to identify,
that during the trial, Judge Swearinger's tires had been slashed, and that
his dog had been found dead. She said that the jurors attributed these actions
to unknown and unnamed members of the [Church]." The complaint stated
that Church counsel suspected that private investigators hired by Wollersheim's
counsel "were responsible for 'dirty tricks' designed to implicate
the Church, and prejudice the jury." Additionally, the complaint alleged
that, because Judge Swearinger refused "to allow discovery into the
jurors in order to establish the extent and source of the taint," "[t]he
source of the jury's bias thus remained a mystery for five years."
The complaint continued, "Finally, in an interview with William
W. Horne, a reporter employed by The American Lawyer magazine which took
place in 1992, Judge Swearinger revealed that he maintained a condition
of mind of unfavorable bias against the Church during the trial of the Prior
Action. According to Horne, Judge Swearinger stated that his dog had drowned
in the family swimming pool during the trial of the Prior Action, and that
the judge believed that he had been followed when in his car throughout
the trial. The judge informed Horne that, while he was in possession of
no evidence to corroborate the suspicions he harbored, he nonetheless felt
that members of the Church of Scientology were responsible for such actions."
On March 19, 1992, Horne revealed Judge Swearinger's statements to the Church's
attorneys, Eric M. Lieberman and Jonathan Lubell. "For the first time,
the Church and its attorneys suspected that the source of infection of the
jury was the judge himself."
The complaint continued, alleging Horne provided further details of the
judge's statements to the Church's attorney, Michael L. Hertsberg, on March
23, 1992. Horne allegedly stated the judge told him the judge's veterinarian
told him the dog was old and had died of a heart attack, yet the judge still
felt the dog had fallen or been pushed into the pool. Also, Horne stated
the judge had said he felt the Church was somehow responsible for the dog's
[42 Cal.App.4th 639] death. The judge also told Horne that he had been followed
"a few times" in his car during the trial and he had assumed the
Church was responsible for these actions.
Horne's article in the July/August 1992 issue of The American Lawyer
quoted Judge Swearinger as saying:
" 'I was followed [at various times] throughout the trial ... and
during motions for a new trial .... All kinds of things were done to intimidate
me, and there were a number of unusual occurrences during that trial. My
car tires were slashed. My collie drowned in my pool. But there was nothing
overtly threatening, and I didn't pay any attention to the funny stuff.'
" (Horne, The Two Faces of Scientology (July/Aug. 1992) Am. Law., p.
Upon information and belief, the Church alleged that the judge described
these incidents to court personnel during the trial and that court personnel
revealed them to the jurors, "resulting in a jury as biased as the
The complaint referred to other occasions in which the judge made statements
to others regarding the Church. In April 1992, during a chamber's conference
in an unrelated case, Judge Swearinger stated to Wollersheim's appellate
lawyer "that he believed the award of damages ... was excessive but
that he had deliberately chosen to allow the excessive verdict to stand
because of his displeasure with the Church and its trial counsel."
The judge referred to the Church's counsel, Earl Cooley, as Earl "Fooley,"
"because Mr. Cooley had alleged that there had been tampering with
the jury." Judge Swearinger allegedly repeated the substance of this
discourse in a telephone conversation with Church counsel: he stated he
did not reduce the jury's damage award "because such an action would
have given credibility to Mr. 'Fooley's' charge that the jury was tainted."
These comments, the complaint alleged, revealed the judge possessed unfounded
suspicions and unfavorable beliefs regarding the Church and that he "improperly
permitted entry of a judgment he knew to be outrageous, and the result of
bias and prejudice, in order to conceal that he, himself, was the source
of the jury's bias and prejudice." The Church alleged it was recently
apprised of this information and prayed the judgment be declared null and
void. The complaint was verified by James Morrow, president of the Church
of Scientology California.
Wollersheim filed a special motion to strike pursuant to section 425.16,
arguing that such a motion was authorized by that provision and that the
Church could not demonstrate a probability that it would prevail on its
[42 Cal.App.4th 640] claims. The motion, as subsequently amended, presented
a number of contentions: (1) the court had no jurisdiction over the action
because the main action was pending before the California Supreme Court;
(2) the court had no jurisdiction because the action was "merely a
disguised attempt" to bring an untimely motion for a new trial; (3)
the action was barred because the Church had not exercised due diligence
in raising its claims; (4) the Church did not plead and could not show that
it has a meritorious defense to the main action; (5) the complaint is not
sufficient to set aside the judgment because it alleges at most intrinsic
fraud; (6) the Church could not demonstrate a probability that it would
prevail on its claim; (7) the Church could not demonstrate a probability
that it could prove key facts which were alleged in the complaint; (8) the
action is part of the Church's litigation strategy to use the courts to
harass opponents; (9) the action was part of the Church's litigation strategy
of attacking judges who rule against them as biased; and (10) the Church
has unclean hands and is not entitled to the equitable relief sought. Wollersheim
argued that the Church could not meet his affirmative defenses: laches,
unclean hands and collateral estoppel.
In support of his motion, Wollersheim submitted the following: Charles
B. O'Reilly, the lead counsel for Wollersheim at trial and on the initial
appeal, declared that Judge Alfred Margolis ruled on the Church's pretrial
motions in the main action which sought to preclude any reference to the
Church's "auditing" of Wollersheim. When the motions were denied,
two affiliates of the Church, Religious Technology Center (RTC) and the
Church of Scientology International (CSI), filed "a so-called RICO
action" in the United States District Court for the Central District
of California against Wollersheim, his two designated experts, and his counsel,
including O'Reilly, "seeking basically the same relief that had been
denied by Judge Margolis." A special master determined the action to
be "not only frivolous but bordering on malicious," and accordingly
the action was dismissed by the judge of the district court, the dismissal
affirmed on appeal in Religious Technology Center v. Wollersheim (9th Cir.
1992) 971 F.2d 364.) While the RICO action was still pending, the Church,
RTC, and/or CSI filed a motion/petition in the Ninth Circuit seeking to
disqualify the entire United States District Court for the Central District
of California on the ground of bias and prejudice against the Church. The
motion/petition was ordered struck from the record by the Ninth Circuit.
O'Reilly declared that, due to his calendar, Judge Margolis withdrew
from the main action. The Church moved to disqualify the entire Los Angeles
Superior Court and/or to transfer the action to another county on the ground
the entire court was biased. The motion was denied as well as the Church's
[42 Cal.App.4th 641] writ petition to the Court of Appeal. The case was
assigned to Judge Lopez and the Church filed a Code of Civil Procedure section
170.6 motion to disqualify him. The action was assigned to Judge Swearinger
for trial. After ruling the Church was required to produce its auditing
file, the Church filed an action in United States District Court against
the judge and others claiming bias and prejudice. This federal case was
dismissed. (Church of Scientology v. Superior Court (U.S. Dist. Ct. (C.D.Cal.
1986), No. CV 86-1362.) Later, after the judge denied the Church's motion
for nonsuit on the intentional infliction of emotional distress cause of
action, the Church filed a formal motion to disqualify him for cause, bias
and prejudice, which motion was denied.
Wollersheim declared that he had liquidated all of his assets, personally
spent about $300,000, and gone more than $900,000 into debt, not including
attorney fees, during the litigation of the main action and related litigation,
over an 11-year period.
Andre A. Anderson, the jury foreperson in the prior action, declared
that "from the start of the trial up through the return of the verdict,
there was no reference to nor comment, by any juror or by any other person
in my presence, about the trial judge, the Honorable Ronald Swearinger,
to the effect that his tires had been slashed, or that his dog had died,
or that he was being followed or in any other way harassed or bothered by
Scientology." Antoinette Saldana, one of the court bailiffs present
during the trial, declared that she, "as well as all court personnel,
took precautions to ensure that no one discussed the case with members of
the jury or with anyone outside the courtroom." Also, she declared
that she was never aware of any unfavorable beliefs or biases held by the
judge against the Church, and the judge never mentioned any strange occurrences
for which he suspected the Church was or might be responsible. He did not
mention that his tires were slashed. He mentioned his dog had died but never
suggested the Church might be responsible for the dog's death.
Declarations of former members and officials of the Church, Gerald Armstrong
and Vicki Aznaran, revealed the practices and policies of the Church, including
its "fair game" doctrine and employment of litigation practices
designed "to bludgeon the opposition into submission," as well
as attacks against judges who rule against it. The declaration of an attorney
who had represented the Church (Joseph A. Yanny), submitted in an action
brought by the Church against him and others, related aspects of the Church's
"fair game" doctrine, including copies of exhibits to demonstrate
"the Cult, according to written policy, will use any means legal or
illegal to [42 Cal.App.4th 642] subvert and frustrate judicial process against
them, and will willingly and knowingly abuse judicial process in order to
attack perceived 'enemies.' "
The Church opposed Wollersheim's motion to strike and requested sanctions
against Wollersheim and his attorneys. The Church contended Wollersheim's
free speech and petition rights were not the subject of the complaint. The
Church argued that even if section 425.16 applied, the Church could establish
the probability that it would prevail.
To demonstrate that the Church could meet its burden of proof (which
the Church contended was the production of "evidence demonstrating
the existence of a material factual issue as to its claim ..."), the
Church submitted the declaration of counsel, Paul F. Moore II, which had
been submitted in support of the Church's application for a new trial in
the prior action. Moore had declared that on August 18, 1986, Terri Reuter
confirmed that the facts discussed in an "attached declaration"
were true but she said she would not sign any declaration because she did
not want to do anything to jeopardize the verdict. Ms. Reuter told him,
he declared, that she knew that she and other members of the jury were being
followed but she could not prove it and that within the last week she was
told by some court personnel that the judge's tires had been slashed and
his dog had been found dead. "This was told to me in conjunction with
our conversations about the trial and in particular in relation to Defendant's
alleged practice of 'Fair Game.' " There was no declaration of Terri
Reuter attached to Moore's declaration submitted in this action.
The Church also submitted the declaration of Eric M. Lieberman. Lieberman
declared he had been interviewed on March 10, 1992, by William Horne, a
reporter for the American Lawyer and Horne told Jonathan Lubell and him
that Judge Swearinger had told Horne he believed the Church had attempted
to harass him during the course of the trial. The Church also submitted
an unauthenticated copy of the American Lawyer article by Horne, entitled
The Two Faces of Scientology, in which Judge Swearinger is quoted. fn. 2
In addition, Barry Van Sickle, who represented Wollersheim in his defense
of the appeal in the prior action, declared that on April 6, 1992, Judge
[42 Cal.App.4th 643] Swearinger expressed an interest in acting as a "facilitator"
in resolving the Wollersheim matter, now that the Court of Appeal had issued
its opinion. On the judge's request, Van Sickle contacted the Church's counsel
in charge of settlement matters, Mr. Drescher. Drescher declared he spoke
on the telephone with Judge Swearinger a day or two later, and the judge
stated that at the time of new trial motions he considered the jury award
should have been reduced in the fashion that the Court of Appeal did, but
that he did not do this because he was upset with Church counsel, whom Judge
Swearinger called "Fooley." "In particular, Judge Swearinger
told me that he was angered by Mr. Cooley arguing to the Court before a
packed gallery, including media, that the jury had been 'in the tank' and
that there was no way that he would reduce that verdict after Mr. Cooley
had raised those allegations for fear of validating them."
The trial court stayed the proceedings, including discovery, pending
a final ruling by the California Supreme Court on the petition for review
of the prior action by the Church. On July 15, 1993, the California Supreme
Court dismissed the petition and remanded to Division Seven of the Second
Appellate District. Wollersheim reset his motion after the remittitur was
issued and the opinion of the Court of Appeal became final.
The parties submitted additional argument and documentation. Wollersheim
submitted the declaration of Steven Fishman, on parole for a conviction
of mail fraud. He was a former member who had been sued by the Church. Fishman
declared that in the late summer or early fall of 1986 another Scientologist
told him that he had drowned a dog named "Duke" that belonged
to a Judge Swearinger. Fishman also declared that, as part of "Operation
Wolly," he had been ordered to call up jurors in the Wollersheim case
in the middle of the night and hang up on them. He relayed details of [42
Cal.App.4th 644] his involvement in raiding the trash dumpster of the law
office of Charles O'Reilly. He also reported that an "agent" had
been assigned to work in O'Reilly's law office as a typist/clerk/receptionist,
to copy legal briefs and to influence O'Reilly into forcing Wollersheim
to accept a settlement from the Church.
Wollersheim's counsel, Mark Goldowitz, declared that he had actively
participated in the enactment of the anti-SLAPP legislation. He traced the
legislative history of Senate Bill No. 1264, 1991-1992 Regular Session,
which he contended demonstrated the intent to cover all lawsuits and other
lawsuit-related communications as petition activity.
The Church disputed Wollersheim's interpretation of the applicability
of section 425.16. The Church attacked the credibility of Fishman, submitting
declarations containing statements which contradicted Fishman's. In reply,
Wollersheim submitted a supplemental declaration of Fishman, accusing of
lying the persons who said the statements in his declaration were false.
On March 30, 1994, the trial court granted the motion to strike the complaint
"for the reasons set forth in Defendant's moving papers," and
dismissed the action with prejudice.
The Church appealed. Thereafter, the trial court granted Wollersheim's
motion for an award of attorney fees, pursuant to subdivision (c) of section
425.16. The Church appealed from that judgment and the two appeals were
Does section 425.16 apply to this action?
If it does, did the Church demonstrate there is a probability it would
Did the trial court abuse its discretion in setting the amount of the
award of attorney fees?
1. Section 425.16 provides a remedy for SLAPP suits.
 Section 425.16 is designed to protect citizens in the exercise of their
First Amendment constitutional rights of free speech and petition. It is
California's response to the problems created by meritless lawsuits brought
to harass those who have exercised these rights. [42 Cal.App.4th 645]
SLAPP suits have been defined as "... 'civil lawsuits ... that are
aimed at preventing citizens from exercising their political rights or punishing
those who have done so.' (Canan & Pring, Strategic Lawsuits Against
Public Participation (1988) 35 Social Problems 506.)" (Wilcox v. Superior
Court (1994) 27 Cal.App.4th 809, 815 [33 Cal.Rptr.2d 446].) They are brought,
not to vindicate a legal right, but rather to interfere with the defendant's
ability to pursue his or her interests. Characteristically, the SLAPP suit
lacks merit; it will achieve its objective if it depletes defendant's resources
or energy. The aim is not to win the lawsuit but to detract the defendant
from his or her objective, which is adverse to the plaintiff. (See Wilcox
v. Superior Court, supra, at pp. 815-817, and authorities cited therein.)
California enacted section 425.16 to provide a procedural remedy to resolve
such a suit expeditiously. Section 425.16 provides, in relevant part, as
"(a) The Legislature finds and declares that there has been a disturbing
increase in lawsuits brought primarily to chill the valid exercise of the
constitutional rights 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
"(b) A cause of action against a person arising from any act of
that person in furtherance of the person's right of petition or free speech
under the United States or California Constitution in connection with a
public issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established that there is a probability
that the plaintiff will prevail on the claim. In making its determination,
the court shall consider the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.
"If the court determines that the plaintiff has established a probability
that he or she will prevail on the claim, neither that determination nor
the fact of that determination shall be admissible in evidence at any later
stage of the case, and no burden of proof or degree of proof otherwise applicable
shall be affected by that determination.
"(c) In any action subject to subdivision (b), a prevailing defendant
on a special motion to strike shall be entitled to recover his or her attorney's
fees and costs. If the court finds that a special motion to strike is frivolous
or is [42 Cal.App.4th 646] solely intended to cause unnecessary delay, the
court shall award costs and reasonable attorney's fees to a plaintiff prevailing
on the motion, pursuant to Section 128.5. * * *
"(e) 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 any written or oral statement
or writing made before a legislative, executive, or judicial proceeding,
or any other official proceeding authorized by law; 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; or 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.
"(f) The special motion may be filed within 60 days of the service
of the complaint or, in the court's discretion, at any later time upon terms
it deems proper.
"(g) All discovery proceedings in the action shall be stayed upon
the filing of a notice of motion made pursuant to this section. The motion
shall be noticed for hearing not more than 30 days after service unless
the docket conditions of the court require a later hearing. The stay of
discovery shall remain in effect until notice of entry of the order ruling
on the motion. The court, on noticed motion and for good cause shown, may
order that specified discovery be conducted notwithstanding this subdivision...."
 The moving party bears the initial burden of establishing a prima
facie showing the plaintiff's cause of action arises from the defendant's
free speech or petition activity. (Wilcox v. Superior Court, supra, 27 Cal.App.4th
at p. 820.) "The defendant may meet this burden by showing the act
which forms the basis for the plaintiff's cause of action was a written
or oral statement made before a legislative, executive, or judicial proceeding
...." (Ibid.) If the defendant establishes a prima facie case, then
the burden shifts to the plaintiff to establish " 'a probability that
the plaintiff will prevail on the claim,' " i.e., "make a prima
facie showing of facts which would, if proved at trial, support a judgment
in plaintiff's favor." (Id. at p. 823.) In making its determination,
the trial court is required to consider the pleadings and the supporting
and opposing affidavits stating the facts upon which the liability or defense
is based. (§ 425.16, subd. (b).) Discovery is stayed upon the filing
of the motion. (§ 425.16, subd. (g).) However, upon [42 Cal.App.4th
647] noticed motion and for good cause shown, the court may allow specified
discovery. fn. 3 2. The Church's action was properly subjected to a section
425.16 motion to strike.
a. Section 425.16 applies to a cause of action arising from defendant's
valid exercise of his petition rights, including litigation activities.
 In accordance with the accepted principles of statutory interpretation,
we first examine the language of the statute to determine the Legislature's
intent. If the language is clear and unambiguous there is no need to resort
to other interpretative aids, such as the legislative history. (Rojo v.
Kliger (1990) 52 Cal.3d 65, 73 [276 Cal.Rptr. 130, 801 P.2d 373].)
 Section 425.16 applies to a cause of action against a person "arising
from any act of that person in furtherance of the person's right to petition
or free speech under the United States or California Constitution in connection
with a public issue." (§ 425.16, subd. (b).)
Subdivision (e) of section 425.16 expressly defines the First Amendment
activity from which the subject cause of action arises as "includ[ing]
 any written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding authorized
by law;  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; or
 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."
The right of access to the courts is an aspect of the First Amendment
right to petition the government for redress of grievances. (McDonald v.
Smith (1985) 472 U.S. 479, 482-484 [86 L.Ed.2d 384, 388-390, 105 S.Ct. 2787];
California Motor Transport Co. v. Trucking Unlimited (1972) 404 U.S. 508,
510 [30 L.Ed.2d 642, 646, 92 S.Ct. 609]; Bill Johnson's Restaurants, Inc.
v. NLRB (1983) 461 U.S. 731, 740 [76 L.Ed.2d 277, 287, 103 S.Ct. 2161];
[42 Cal.App.4th 648] see also Matossian v. Fahmie (1980) 101 Cal.App.3d
128, 135-137 [161 Cal.Rptr. 532].) "The [United States Supreme Court]
traditionally has held that the Due Process Clauses protect civil litigants
who seek recourse in the courts, either as defendants hoping to protect
their property or as plaintiffs attempting to redress grievances."
(Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 429 [71 L.Ed.2d 265,
273, 102 S.Ct. 1148].) fn. 4 A cause of action "arising from"
defendant's litigation activity may appropriately be the subject of a section
425.16 motion to strike.
[5a] The Church contends section 425.16 does not apply because its action
against Wollersheim is not an attack on Wollersheim personally and would
not interfere with Wollersheim's right to pursue his claims against the
Church-i.e., the Church's complaint does not "arise" from any
act in furtherance of Wollersheim's right of petition or free speech because
the Church does not challenge Wollersheim's right to file a lawsuit nor
is its lawsuit "brought primarily to chill the valid exercise"
of that right.
The Church's approach to the interpretation of section 425.16 is too
restrictive, suggesting that only a direct personal attack on the defendant
would be subject to a motion to strike.
The statutory language, however, is clear and unambiguous. (Rojo v. Kliger,
supra, 52 Cal.3d at p. 73.) It specifically applies to "[a] cause of
action against a person arising from any act of that person in furtherance
of the person's right of petition" including a "written or oral
statement or writing made in connection with an issue under ... review by
a ... judicial body ...." (§ 425.16, subds. (b), italics added,
& (e).) And, thus, it literally applies to any direct attack on the
judgment in the prior action, which resulted from Wollersheim's petition
Furthermore, an examination of the history of the underlying litigation
reveals that the instant action is consistent with a pattern of conduct
by the Church to employ every means, regardless of merit, to frustrate or
undermine Wollersheim's petition activity.  When a party to a lawsuit
engages in a course of oppressive litigation conduct designed to discourage
the opponents' right to utilize the courts to seek legal redress, the trial
court may properly apply section 425.16. We hold that in making that determination,
the trial court may properly consider the litigation history between the
[42 Cal.App.4th 649] parties. The legislative rationale in enacting the
statute is consistent with such an analysis because acts which are designed
to discourage the bringing of a lawsuit are no more oppressive than acts
which seek to prolong the litigation to a point where it is economically
impracticable to maintain and pursue it to a final conclusion. When one
party to a lawsuit continuously and unsuccessfully uses the litigation process
to bludgeon the opponent into submission, those actions must be closely
scrutinized for constitutional implications.
[5b] In the instant action the Church's actions clearly fall within the
ambit of section 425.16. Among its other litigation strategies, the Church
has filed two nonmeritorious federal court actions as well as this one.
fn. 5 The Church has filed numerous appeals in state and federal courts
and has prolonged Wollersheim's 1980 lawsuit for 15 years. When the litigation
actions of the Church are analyzed in the light of the entire litigation
history between the parties, it appears the instant lawsuit was brought
by the Church against Wollersheim: (a) in retaliation for his 1980 lawsuit
against the Church; (b) to punish him economically for bringing that lawsuit;
and (c) to obliterate the value of any victories over the Church by forcing
him to abandon his efforts to recover the damages awarded in the prior action
by making it too costly to do so. fn. 6
The Church argues that it has every right to exhaust its legal remedies,
including appeal rights. We agree. However, when a litigant continuously
and unsuccessfully uses the litigation process in filing unmeritorious motions,
appeals and lawsuits, such actions have constitutional implications which
may be reviewed on a motion under section 425.16.
The Church also argues it has been successful in its posttrial motion
and appellate strategy and therefore, even if the litigation history is
considered, it [42 Cal.App.4th 650] favors the Church. We disagree. The
only relief the Church has obtained from all of its lawsuits, petitions
for writs of mandate, appeals to the California Court of Appeal and the
Ninth Circuit Court of Appeals, the California and the United States Supreme
Courts was obtained in the initial state court appeal in 1989 which resulted
in a reduction of Wollersheim's judgment. The fact that both the California
and the United States Supreme Courts granted the Church's petitions was
no more than fortuitous as both courts at that time were reviewing the issue
of punitive damages. In each instance, however, the case was remanded to
the intermediate appellate courts with no change in ruling.
 The Church also argues that Wollersheim's tort action against a private
party (the Church) was not a matter of public interest subject to the protection
of section 425.16. Subdivision (e), describing protected activity, refers
to three categories; only the category of activity referred to as the "exercise
of free speech rights" is subject to the limitation that it be "made
in a place open to the public or a public forum in connection with an issue
of public interest." fn. 7 The first two categories parallel the description
of privileged communications in Civil Code section 47, subdivision (b) and
include judicial proceedings without any limitation as to subject matter.
But even if we were to assume that a motion to strike pursuant to section
425.16 were limited to issues of public interest, the motion would apply
to this action against Wollersheim, arising from his lawsuit against the
Church. Although matters of public interest include legislative and governmental
activities, they may also include activities that involve private persons
and entities, especially when a large, powerful organization may impact
the lives of many individuals. Examples are product liability suits, real
estate or investment scams, etc. (See Wilcox v. Superior Court, supra, involving
an [42 Cal.App.4th 651] action against private entities.) The record reflects
the fact that the Church is a matter of public interest, as evidenced by
media coverage and the extent of the Church's membership and assets. Furthermore,
the underlying action concerned a fundamental right, the constitutional
protection under the First Amendment religious practices guaranties, and
addressed the scope of such protection, concluding that the public has a
compelling secular interest in discouraging certain conduct even though
it qualifies as a religious expression of the Scientology religion. (Wollersheim
v. Church of Scientology, supra, 212 Cal.App.3d at pp. 887-900.)
The Church objects that the application of section 425.16 to any action
arising from the defendant's exercise of petition rights through litigation
would subject all counterclaims and other claims relating to a defendant's
prior legal action to a special motion to strike.
 Although a cross-complaint may be subject to a section 425.16 motion,
not all cross-complaints would qualify as SLAPP suits. A defendant may file
a cross-complaint against the plaintiff for any existing cause of action
regardless of its nature and origins. (Code Civ. Proc., § 428.10, subd.
(a).) Only those cross-complaints alleging a cause of action arising from
the plaintiff's act of filing the complaint against the defendant and the
subsequent litigation would potentially qualify as a SLAPP action. (§
425.16, subds. (b) and (d).) For example, a person may attempt to bring
a SLAPP suit alleging that libelous allegations or statements were contained
in the complaint itself. However, because defendant's allegations are privileged
communications under Civil Code section 47, the suit would be merit-less.
(See, e.g., California Physicians' Service v. Superior Court (1992) 9 Cal.App.4th
1321 [12 Cal.Rptr.2d 95].)
A compulsory cross-complaint on a "related cause of action"
against the plaintiff (Code Civ. Proc., § 426.30, subd. (a)) would
rarely, if ever, qualify as a SLAPP suit arising from petition activity.
By definition, a "related cause of action" is "a cause of
action which arises out of the same transaction, occurrence, or series of
transactions or occurrences as the cause of action which the plaintiff alleges
in his complaint." (Code Civ. Proc., § 426.10, subd. (c), italics
added.) The SLAPP suit is not "related" to the transaction or
occurrence which is the subject of the plaintiff's complaint, but arises
out of the litigation process itself. [42 Cal.App.4th 652] b. Section 425.16
applies to any cause of action arising from petition activity, not only
The Church also argues section 425.16 applies to tort actions only. fn.
Considering the purpose of the provision, expressly stated, the nature
or form of the action is not what is critical but rather that it is against
a person who has exercised certain rights such as Wollersheim did in the
prior action against the Church. Although the "favored causes of action"
in SLAPP suits may be defamation, various business torts, nuisance and intentional
infliction of emotional distress (Wilcox v. Superior Court, supra, 27 Cal.App.4th
at p. 816), the Legislature did not limit application of the provision to
such actions, recognizing that all kinds of claims could achieve the objective
of a SLAPP suit-to interfere with and burden the defendant's exercise of
his or her rights.
The Church argues that "The legislature was especially concerned
by the threat to the exercise of constitutional rights posed by a complaint
demanding costly damages, which is likely to be a tort suit demanding punitive
damages. Thus, because of the possibility of punitive damages, a SLAPP suit
in tort poses the greatest threat to the exercise of constitutional rights;
therefore, it was against these tort suits that the legislature directed
its statutory remedy." Once again the Church's construction of the
legislative intent behind section 425.16 is too restrictive. There is no
such limiting language in the statute. Moreover, the free exercise of the
constitutional right of judicial redress is no less threatened by the employment
of nontortious litigation practices designed to economically "bludgeon
the opposition into submission." In either case the result is to subject
the litigant to economic loss sufficient to discourage the free exercise
of a constitutionally protected right.
Furthermore, the Church's argument that its complaint sought no relief
or judgment directly against Wollersheim and therefore he would remain free
[42 Cal.App.4th 653] to assert and pursue his claims against the Church
is equally misplaced. The Church's complaint asserted that the judgment
in the prior action should be declared null and void and a new trial should
be ordered. The effect of such an order would be to directly impact Wollersheim
by requiring him to incur further economic hardship by relitigating a matter
that has already consumed fifteen years of litigation; a five-month jury
trial; at least two appeals and six writ petitions in the Court of Appeal;
two petitions for review in the California Supreme Court; two petitions
for certiorari in the United States Supreme Court and two lawsuits in federal
district court, all arising out of Wollersheim's original 1980 lawsuit against
the Church. 3. The Church failed to establish the "probability"
it would prevail on its claim.
Once the defendant has met the burden of establishing that section 425.16
applies to the lawsuit, the burden shifts to the plaintiff to establish
"that there is a probability that the plaintiff will prevail on the
claim." (§ 425.16, subd. (b).) On appeal, we independently review
the entire record to determine whether the Church made a sufficient prima
facie showing that it would prevail in light of the applicable law relative
to the claim. (Cf. Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357-358
[42 Cal.Rptr.2d 464] [libel action which requires clear and convincing evidence
"In making its determination, the court shall consider the pleadings,
and supporting and opposing affidavits stating the facts upon which the
liability or defense is based." (§ 425.16, subd. (b).)
Wilcox held that the "probability" hurdle was met if the plaintiff
demonstrated sufficient facts to establish a prima facie case, similar to
the standard used in determining a motion for nonsuit or directed verdict.
(Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 824.) "To establish
'a probability that the plaintiff will prevail on the claim' the plaintiff
must make a prima facie showing of facts which would, if proved at trial,
support a judgment in plaintiff's favor." (Id. at p. 823.) The Wilcox
court observed that the original version of Senate Bill No. 1264 required
a "substantial" probability, but it was amended to eliminate the
adjective. (27 Cal.App.4th at p. 824.) Nevertheless, the court reasoned
the Legislature did not intend a threshold lower than a "reasonable
probability." "Rather, it appears the Legislature eliminated the
word 'substantial' in order to avoid the implication the trial court was
to weigh the evidence which ... would raise a serious constitutional problem
[regarding the preservation of the plaintiff's right to a jury trial]. [Citation.]"
(Id. at pp. 824-825.) [42 Cal.App.4th 654]
The court explained, "[T]he common features of SLAPP suits are their
lack of merit and chilling of defendants' valid exercise of free speech
and the right to petition the government for a redress of grievances....
Section 425.16 was intended to address those features by providing a fast
and inexpensive unmasking and dismissal of SLAPP's.... It is also presumed
the Legislature intended to enact a valid statute.... Anti-SLAPP legislation,
therefore, must be fast, inexpensive and constitutional or it is of no benefit
to SLAPP victims, the court or the public. In order to satisfy due process,
the burden placed on the plaintiff must be compatible with the early stage
at which the motion is brought and heard (§ 425.16, subds. (f) and
(g)) and the limited opportunity to conduct discovery (subd. (g)). In order
to preserve the plaintiff's right to a jury trial the court's determination
of the motion cannot involve a weighing of the evidence." (27 Cal.App.4th
at p. 823, citations omitted, original italics.)
Subsequent appellate decisions have employed the standard applied in
Wilcox. (See Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1496 [45 Cal.Rptr.2d
624]; LaFayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th
855, 867 [44 Cal.Rptr.2d 46], review den.; Ludwig v. Superior Court (1995)
37 Cal.App.4th 8, 15 [43 Cal.Rptr.2d 350], re-view den.; Robertson v. Rodriguez
(1995) 36 Cal.App.4th 347, 355 [42 Cal.Rptr.2d 464]; Dixon v. Superior Court
(1994) 30 Cal.App.4th 733, 746 [36 Cal.Rptr.2d 687], review den.) It is
recognized, with the requirement that the court consider the pleadings and
affidavits of the parties, the test is similar to the standard applied to
evidentiary showings in summary judgment motions pursuant to Code of Civil
Procedure section 437c and requires that the showing be made by competent
admissible evidence within the personal knowledge of the declarant. (Ludwig
v. Superior Court, supra, at pp. 15-16.). fn. 10 Averments on information
and belief are insufficient. (Evans v. Unkow, supra, 38 Cal.App.4th at pp.
1493, 1497-1498; cf. College Hospital, [42 Cal.App.4th 655] Inc. v. Superior
Court (1994) 8 Cal.4th 704, 719 [34 Cal.Rptr.2d 898, 882 P.2d 894] [construing
Code Civ. Proc., § 425.13, which requires a motion to amend a complaint
to state a punitive damages claim against a health care provider].) As in
a motion for summary judgment, the pleadings frame the issues to be decided.
(See, e.g., Dorado v. Knudsen Corp. (1980) 103 Cal.App.3d 605, 611 [163
[9a] Therefore, the Church was required to demonstrate by admissible
evidence the probability that it would succeed in obtaining an injunction
to set aside the former judgment in Wollersheim's favor on the ground of
judicial bias during the conduct of the prior action. This it failed to
In order to establish the probability of success the Church had to present
admissible evidence of judicial bias sufficient to void the judgment in
the prior action. Courts applying the former judicial disqualification statute,
Code of Civil Procedure section 170, subdivision (a), held that judgments
of a disqualified judge were void. A void judgment is open to attack at
any time. (Cadenasso v. Bank of Italy (1932) 214 Cal. 562, 567-568 [6 P.2d
944].)  However, courts applying the new provisions, Code of Civil Procedure
section 170 et seq., adopted in 1984, consider such judgments or orders
merely voidable. (Betz v. Pankow (1993) 16 Cal.App.4th 931, 939-940 [20
Cal.Rptr.2d 841], and cases cited therein.)
Code of Civil Procedure section 170.1, subdivision (a)(6) provides for
the disqualification of a judge if "For any reason ... (B) the judge
believes there is a substantial doubt as to his or her capacity to be impartial,
or (C) a person aware of the facts might reasonably entertain a doubt that
the judge would be able to be impartial. Bias or prejudice towards a lawyer
in the proceeding may be grounds for disqualification."
"The matter of disqualification should be raised when the facts
constituting the grounds for disqualification are first discovered and,
in any event, before the matter involved is submitted for decision. (Baker
v. Civil Service Com. (1975) 52 Cal.App.3d 590, 594 ....) This rule applies,
however, only when the facts constituting the disqualification are discovered
before a [42 Cal.App.4th 656] case is submitted for decision. The rule rests
on the principle that a party may not gamble on a favorable decision. (Ibid.)
... [C]ase law recognizes situations in which a party is entitled to relief
even though the grounds for disqualification are not discovered until after
judgment is entered. In such case, a statement of disqualification is timely
if submitted at the 'earliest practicable opportunity' after the disqualifying
facts are discovered." (Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d
415, 424-425 [285 Cal.Rptr. 659] [summary judgment granted by disqualified
judge held to be voidable] review den.) fn. 11
In making our determination whether the Church has established a probability
that it would prevail, we now consider "the pleadings, and supporting
and opposing affidavits stating the facts upon which the liability or defense
is based," (§ 425.16, subd. (b)), as discussed above.
[9b] An examination of the Church's complaint reveals an absence of any
admissible evidence to demonstrate its claim. The allegations of fact in
the complaint which are critical to the Church's claim of judicial bias
are not admissible, even though the complaint is verified, because they
were not within the personal knowledge of the verifier, the president of
the Church.  Generally, a party cannot simply rely on the allegations
in its own pleadings, even if verified, to make the evidentiary showing
required in the summary judgment context or similar motions, such as plaintiff's
motion to amend to include a punitive damage claim under section 425.13,
subdivision (a). (College Hospital Inc. v. Superior Court, supra, 8 Cal.4th
at p. 720, fn. 7.) The same rule applies to motions under section 425.16.
Here, like motions under Code of Civil Procedure section 437c, the pleadings
merely frame the issues to be decided. Similarly, an averment on information
and belief is inadmissible at trial, and thus cannot show a probability
of prevailing on the claim. (Evans v. Unkow, supra, 38 Cal.App.4th at pp.
1497-1498.) "An assessment of the probability of prevailing on the
claim looks to trial, and the evidence that will be presented at that time.
(See Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 824 ....) Such
evidence must be admissible. (Id. at p. 830.)" (Id. at p. 1497, original
Wollersheim made a number of objections to the evidence the Church offered
by declarations. Wollersheim's objections to portions of the declaration
of Paul Moore on the grounds they were hearsay (Evid. Code, § 1200)
[42 Cal.App.4th 657] and irrelevant (Evid. Code, § 351) are properly
sustained. Mr. Moore refers to a statement of Juror Terri Reuter, which
showed on its face that she did not learn of the allegations concerning
the judge's tires being slashed and the death of his dog until long after
the verdict. Also Moore's report of her statements regarding statements
of court personnel were inadmissible double hearsay. The declaration of
Ms. Reuter to which Moore referred was not attached and was reportedly unsigned
and never served on Wollersheim's counsel.
Wollersheim also properly objected to the declaration of Eric Lieberman,
which consists of his statement about the statements of the reporter, Mr.
Horne, regarding the statements made by the judge to Mr. Horne. This is
inadmissible double hearsay. (Evid. Code, § 1200.)
Wollersheim objected to the declaration of Earle Cooley as irrelevant.
It simply states that the judge never mentioned to Church counsel that his
tires had been slashed or that his collie had drowned in his pool, and that
the judge did not "reveal his belief or concern" that Church personnel
were responsible for acts of harassment. Although Cooley's declaration may
have some relevance to the issue of "discovery" of the alleged
"new evidence" of bias, it contains no evidence of bias on the
part of the judge.
Wollersheim also properly objected to statements in the declaration of
Barry Van Sickle on the grounds of hearsay, untrustworthiness and relevancy.
The declaration contains hearsay evidence of statements of the judge made
six years after the trial in the prior action to one of Wollersheim's appellate
counsel. The judge is reported to have said that he was willing to act as
a facilitator to settlement as he did not want to see the case retried.
These statements are irrelevant to the Church's claim of the existence of
judicial bias during the trial itself.
The declaration of William T. Drescher also contains hearsay and multiple
hearsay, relaying the statements of Judge Swearinger to him and the statements
of Van Sickle regarding the judge's comments to him six years after trial
and Wollersheim objected on that basis. The Church contends the statements
are admissible under the state-of-mind exception. Wollersheim also objected
to these statements as irrelevant to the Church's claim of bias at the time
of trial and that objection is sustainable.
The unauthenticated copy of the American Lawyer article does not contain
any competent evidence, as it too is multiple hearsay-the statements of
Horne of the statements of Judge Swearinger. Furthermore, the quoted statements
of the judge which indicate that he believed "funny stuff" [42
Cal.App.4th 658] was occurring also indicate he did not "pay attention"
to it. Therefore it is irrelevant, as Wollersheim contended.
In opposition to the Church's "evidence," Wollersheim submitted
substantial admissible evidence that the jury members had no knowledge that
the judge's tires were slashed or that his dog had died. There is evidence
by declarations of court personnel that they were unaware of any bias on
the part of the judge. Terri Reuter declares that she learned of the tire
slashing and dog drowning "sometime well after the trial in the Wollersheim
case was over."
[9c] Finally, we turn to the issue of the timeliness of the Church's
lawsuit to set aside the verdict. An action to void a judgment based on
judicial bias is timely if filed at the " 'earliest practicable opportunity'
after the disqualifying facts are discovered." (Urias v. Harris Farms,
Inc., supra, 234 Cal.App.3d at p. 425.) Here, the Church also failed in
carrying its burden. In its 1986 motion for new trial the Church raised
the issue of Judge Swearinger's alleged bias and the possible contamination
of the jury by Terri Reuter's unsigned declaration.
The Church's numerous claims of judicial and jury bias and prejudice
were adjudicated at earlier stages of the litigation. Yet the Church waited
seven years to file the instant lawsuit alleging the same facts to support
its complaint. Clearly the Church is too late.
The trial court acted properly in granting Wollersheim's motion to strike
the Church's complaint. This conclusion did not require weighing evidence
as the Church failed to present a prima facie case supported by admissible
evidence. This conclusion also obviates the need to address the various
credible, potentially meritorious, defenses of laches, unclean hands and
collateral estoppel presented by Wollersheim, except to observe that such
defenses are to be considered if necessary in determining plaintiff's probability
of success once the plaintiff has presented evidence of the probability
of success. (§ 425.16, subd. (b).)
4. The award of attorney fees was proper and supported by substantial
[12a] Upon the motion of Wollersheim, the trial court awarded attorney
fees pursuant to section 425.16, subdivision (c) in the amount of $130,506.71.
In doing so, the trial court rejected Wollersheim's request to double the
"lodestar" amount, the number of attorney hours expended multiplied
by the hourly rates. (See Serrano v. Priest (1977) 20 Cal.3d 25 [42 Cal.App.4th
659] [141 Cal.Rptr. 315, 569 P.2d 1303].) The Church contends the total
number of hours claimed was unreasonable and inexplicable, pointing out
that the case was dismissed on the basis of pleadings and accompanying declarations.
 " 'The matter of reasonableness of attorney's fees is within
the sound discretion of the trial judge. [Citations.] Determining the weight
and credibility of the evidence, especially credibility of witnesses, is
the special province of the trier of fact. [Citation.]' [Citation.] 'In
determining what constitutes a reasonable compensation for an attorney who
has rendered services in connection with a legal proceeding, the court may
and should consider "the nature of the litigation, its difficulty,
the amount involved, the skill required and the skill employed in handling
the litigation, the attention given, the success of the attorney's efforts,
his learning, his age, and his experience in the particular type of work
demanded ... ; the intricacies and importance of the litigation, the labor
and necessity for skilled legal training and ability in trying the cause,
and the time consumed." [Citations.]' [Citations.]" (Stokus v.
Marsh (1990) 217 Cal.App.3d 647, 656-657 [266 Cal.Rptr. 90].)
[12b] We find the trial court did not abuse its discretion in awarding
attorney fees and that substantial evidence supports the award. Wollersheim's
counsel submitted declarations of their experience and expertise providing
information supportive of the rates charged by counsel as well as itemized
accountings of attorney time. Wollersheim also submitted the declaration
of an expert on attorney fees who opined that the rates requested by his
counsel were "well within the range of market rates charged by attorneys
of equivalent experience, skill and expertise." The Church has not
presented any evidence in the record that the award was based upon unnecessary
or duplicative work or any other improper basis.
5. Wollersheim is entitled to an award of attorney fees on appeal.
Wollersheim has asked this court to award him attorney fees on this appeal.
Subdivision (c) of section 425.16 provides for an award of attorney fees
to the defendant who successfully brings a motion to strike.
 "A statute authorizing an attorney fee award at the trial court
level includes appellate attorney fees unless the statute specifically provides
otherwise. (Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927-929
...; Grade-Way Construction Co. v. Golden Eagle Ins. Co. (1993) 13 Cal.App.4th
826, 837-838 ....)" (Evans v. Unkow, supra, 38 Cal.App.4th at pp. 1499-1500.)
Section 425.16, subdivision (c) provides that a prevailing defendant is
entitled to recover attorney fees and costs, and does not preclude recovery
on appeal. (38 Cal.App.4th at p. 1500.) [42 Cal.App.4th 660]
Wollersheim is awarded his attorney fees on this appeal, the amount of
which is to be determined by the trial court upon remand.
Judgment of dismissal and judgment awarding attorney fees are affirmed.
Wollersheim is awarded costs and attorney fees on appeal. The matter is
remanded to the trial court to determine the amount thereof.
Klein, P. J., and Croskey, J., concurred.
FN 1. Wollersheim v. Church of Scientology (1989) 212 Cal.App.3d
872 [260 Cal.Rptr. 331].
FN *. Review of opinion (B023193) was dismissed July 15, 1993.
FN 2. The article states: "California superior court judge
Ronald Swearinger, who presided over the Wollersheim trial, describes the
case itself as anything but normal: Church trial lawyer Cooley and his co-counsel,
the late John Peterson, filed a number of unsuccessful 'writs and motions'
throughout the trial in an attempt to halt it, according to Judge Swearinger.
Three days into the trial, the judge says, they moved for his disqualification
based on 'some secret conversation I'd had with someone I'd never heard
of.' They also filed a Section 1983 federal civil rights action against
both him and the judge who sat on the case prior to him, says Swearinger,
on the theory that by allowing the case to go to trial, the judges were
denying the church its civil rights. (Cooley confirms that the Section 1983
action and the disqualification motion were filed.) [¶] But Swearinger's
recollections of the oddities of the Wollersheim case go beyond court filings:
'I was followed [at various times] throughout the trial ... and during the
motions for a new trial,' the judge claims. 'All kinds of things were done
to intimidate me, and there were a number of unusual occurrences during
that trial. My car tires were slashed. My collie drowned in my pool. But
there was nothing overtly threatening, and I didn't pay attention to the
funny stuff.' " (Horne, The Two Faces of Scientology, Am. Law., supra,
at pp. 77, 78.)
"At the trial Scientologists packed the courtroom and hallways of
the courthouse and regularly interrupted the proceedings by protesting against
alleged religious discrimination. [¶] 'I'd let the jury out, let the
[protesters] blab on, and then let the jury back in,' says Judge Swearinger.
'It didn't bother me.' Swearinger says he thought Cooley's histrionics were
'comical' rather than effective, and that he often caught the jury 'rolling
their eyes' at Cooley's 'loud talk and hostility to opposing counsel and
witnesses.' The jury returned a $30 million verdict in July 1986; $5 million
in compensatory damages and $25 million in punitives." (Horne, The
Two Faces of Scientology, Am. Law., supra, at p. 78.)
FN 3. The provisions of section 425.16 were designed to provide
an economical and expeditious remedy to SLAPP suits. The defendant may file
a motion to strike within 60 days of the service of the complaint. Because
the motion is heard within 30 days of the notice of the motion, the plaintiff's
case may not be developed. However, the provision allowing discovery for
good cause provides plaintiff a means to avoid any legitimate prejudice
due to the alacrity of the proceedings. Scientology did not file a motion
to conduct additional discovery.
FN 4. The right to petition is not absolute, providing little or
no protection for baseless litigation or sham or fraudulent actions. Under
the statutory scheme, a motion to strike cannot be successful unless the
plaintiff's action is a meritless attempt to interfere with the defendant's
exercise of petition activity and it is shown it lacks merit. Thus section
425.16 protects the defendant from retaliatory action for his or her exercise
of legitimate petition rights but does not unconstitutionally interfere
with the plaintiff's own petition rights.
FN 5. Just prior to oral argument we were informed by counsel for
Wollersheim that on August 21, 1995, Scientology filed still another action
against Wollersheim in the federal district court of Colorado. Wollersheim
complains that through a civil writ of seizure in that action the Church
has seized over 600,000 documents from Wollersheim and has used that lawsuit
to conduct discovery as to Judge Swearinger, Attorney Charles O'Reilly and
Daniel Leipold, the trial judge, and Wollersheim's past and present attorneys
respectively in the prior action, in violation of the automatic stay order
of section 425.16. The Church objects to our considering the Colorado lawsuit
on the grounds that it is irrelevant to the proceedings herein. Inasmuch
as we know nothing of the facts underlying that lawsuit we agree with the
Church and decline to consider that lawsuit in this appeal. We will leave
the issue of whether that suit is meritorious to the Colorado courts.
FN 6. Wollersheim declares he has spent $300,000 and is indebted
for another $900,000 as a result of his disputes with the Church.
FN 7. See, e.g.,Wilcox v. Superior Court, supra, 27 Cal.App.4th
at page 820, citing Pacific Gas & Electric Co. v. Bear Stearns &
Co. (1990) 50 Cal.3d 1118, 1136 [270 Cal.Rptr. 1, 791 P.2d 587].) The Bear
Stearns court placed limits on the ability to bring a tort action against
persons who brought an action or induced another to bring an action against
plaintiff. "If any person who induced another to bring a lawsuit involving
a colorable claim could be liable in tort, free access to the courts could
be choked off with an assiduous search for unnamed parties.... [I]t would
defeat the purpose of assuring free access to the courts, and cause a flood
of oppressive derivative litigation, to assess tort liability for their
activities." (Id. at p. 1136.)
FN 8. Civil Code section 47, subdivision (b) refers to privileged
publication or broadcast made in any "(1) legislative proceeding, (2)
judicial proceeding, (3) in any other official proceeding authorized by
law, or (4) in the initiation or course of any other proceeding authorized
by law and reviewable pursuant to Chapter 2 (commencing with Section 1084)
of Title 1 of Part 3 of the Code of Civil Procedure ... [with certain exceptions
FN 9. The Church points to comments in the legislative history and
language from Wilcox v. Superior Court, supra, 27 Cal.App.4th 809, regarding
these particular aspects of SLAPP suits. For example, in discussing SLAPP
suits, Wilcox stated, "The favored causes of action in SLAPP suits
are defamation, various business torts such as interference with prospective
economic advantage, nuisance and intentional infliction of emotion distress....
Plaintiffs in these actions typically ask for damages which would be ruinous
to the defendants.... [¶] SLAPP suits are brought to obtain an economic
advantage over the defendant, not to vindicate a legally cognizable right
of the plaintiff." (Id. at p. 816, original italics, citations omitted.)
Nothing in Wilcox or the statute specifically limits the applicability of
section 425.16 to tort actions only. Furthermore, as Wollersheim correctly
points out, the comments about tort actions are contained in documents which
do not constitute legislative history.
FN 10. Wollersheim and amici curiae implore this court to apply
a heavier burden of proof, contending that "probability" means
"more likely than not."
The legislative history reveals that the "probability" language
was a compromise. A predecessor bill to Senate Bill No. 1264 was drafted
as a pleading bar, requiring plaintiffs to obtain prefiling approval of
any lawsuit arising out of a defendant's exercise of First Amendment or
petition rights. Governor Deukmejian vetoed that bill. (Wilcox v. Superior
Court, supra, 27 Cal.App.3d 809, 820.) Senate Bill No. 1264 originally contained
a burden of proof requiring plaintiff to show a "substantial probability"
of prevailing on the merits. In response to opposition to that standard,
the bill was amended to the "probability" standard. The Legislature
rejected a standard proposed by Governor Wilson: "sufficient evidence
upon which a reasonable claim may be based." It is contended that the
"probability" standard adopted was intended to require a plaintiff
to show a "likelihood" or "51% chance" of prevailing.
The "legislative history" cited for this interpretation is a letter
from the Governor's office which states that there appeared to be no meaningful
distinction between the "substantial probability" standard and
the "reasonable probability" standard then being proposed. In
criticizing that standard as "fundamentally unfair," the letter
stated that it "would require a plaintiff to have 51% of his or her
case proven the day the suit is filed and before any discovery is taken."
The bill's sponsor, Bill Lockyer, objected to the Governor's proposed standard,
claiming it would "eviscerate the measure." The Governor signed
the legislation with the "probability" standard.
In light of potential problems with the constitutional right to a jury
trial, the courts have interpreted the plaintiff's burden in opposing a
motion to strike pursuant to section 425.16 as requiring the demonstration
of a prima facie case. (Layfayette Morehouse, Inc. v. Chronicle Publishing
Co., supra, 37 Cal.App.4th 855, 867.) We are in accord with these authorities.
FN 11. Wollersheim's contention that the Church's complaint is an
unsuccessful attempt to allege either intrinsic or extrinsic fraud is somewhat
beside the point. Rather the complaint is an attempt to allege the judgment
in the underlying action is void because the matter was tried before a judge
who concealed his bias. Nevertheless, the Church failed to successfully
plead or present evidence in opposition to Wollersheim's motion to support
the essential basis for such a claim-facts of Judge Swearinger's alleged
bias during the trial.