BARRY v. STATE BAR OF CALIFORNIA

Respondent’s Petition for Review

Cal.October 18, 2013

FILED WITH PERMISSION — -§214058 | oe 8 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PATRICIA J. BARRY SUPREME COURT PlaintiffandAppellant, F i [ E r) Vv. OCT 18 2013 THE STATE BAR OF CALIFORNIA, Frank A. McGuire Clerk Defendant andRespondent. Deputy After a Published Decision by the Court ofAppeal Second Appellate District, Division Two Case No. B242054, Reversing a Judgment Entered by the Superior Court for the County ofLos Angeles, Case No. BC452239, The Honorable Dierdre Hill presiding PETITION FOR REVIEW STARR BABCOCK(63473) JAMES M. WAGSTAFFE (95535) LAWRENCEC. YEE (84208) MICHAEL VON LOEWENFELDT(178665) DANIELLE A. LEE (223675) KERR & WAGSTAFFE LLP OFFICE OF GENERAL COUNSEL 100 Spear Street, 18th Floor THE STATE BAR OF CALIFORNIA San Francisco, CA 94105 180 Howard Street (415) 371-8500 Telephone San Francisco, CA 94105-1639 (415) 371-0500 Facsimile (415) 538-2000 Telephone mvl@kerrwagstaffe.com (415) 538-2321 Facsimile Attorneysfor Defendant and Respondent THE STATE BAR OF CALIFORNIA IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PATRICIA J. BARRY Plaintiffand Appellant, Vv. THE STATE BAR OF CALIFORNIA, Defendant and Respondent. After a Published Decision by the Court ofAppeal Second Appellate District, Division Two Case No. B242054, Reversing a Judgment Entered by the Superior Court for the County of Los Angeles, Case No. BC452239, The Honorable Dierdre Hill presiding PETITION FOR REVIEW STARR BABCOCK(63473) JAMES M. WAGSTAFFE (95535) LAWRENCEC. YEE (84208) MICHAEL VON LOEWENFELDT(178665) DANIELLE A. LEE (223675) KERR & WAGSTAFFE LLP OFFICE OF GENERAL COUNSEL 100 Spear Street, 18th Floor THE STATE BAR OF CALIFORNIA San Francisco, CA 94105 180 Howard Street (415) 371-8500 Telephone San Francisco, CA 94105-1639 (415) 371-0500 Facsimile (415) 538-2000 Telephone mvl@kerrwagstaffe.com (415) 538-2321 Facsimile Attorneysfor Defendant and Respondent THE STATE BAR OF CALIFORNIA TABLE OF CONTE NTS Page 1. ISSUES PRESENTED sevessssssetsseeeeeneesnnnsessnnerene ere3 fl REVIEWIS NECESSARY TO SETTLE AN IMPORTANT QUESTION OF LAW wceccsssessessssesensesserenssensnasessessese* 3 Ii. BACKGROUND AND STATEMENT OF THE CASE: sesessensevrsnsntnsnnnenrnsnenrnesnnrnene teeETT 4 A. California’s Attorney Disciplinary System ....-.s--sssrreerr4 B. Ms.Barry’s Stipulated Discipline and Subsequent STAPP SUit ..--sscccccesecssssersenerttttes teeter5 FY. ARGUMENT.evessnesennnntrnnnnrcnee EET6 A. The Anti-SLAPP Statute Is Designed To Prevent Abuse OfThe Judicial System ....-s---sssecrecerererrsrrr 6 B. Ms. Barry’s Suit Was A SLAPP SUit....-sssssceecsesseersestetseree rere7 Ms. Barry’s CaseIs Far From Unique....-s--sssssreerserererer 8 D. Lack Of Superior Court Jurisdiction To Interfere With State Bar Court Proceedings Does Not Immunize A SLAPPPlaintiffFrom Fees Under The Anti-SLAPP Statute ....---s-sccresccrrrsrrerre i Vy. CONCLUSION. nssernssrnnnerrnernnn ntEET 18 TABLE OF AUTHORITIES Page Cases Bradbury v. Super. Ct. (1996) 49 Cal.App.4th 1108 [57 Cal.Rptr.2d 207].......:ecceeseeereees 8 Briggs v. Eden Councilfor Hope & Opportunity (1999) 19 Cal.4th 1106 [81 Cal.Rptr.2d 471]...eeeeeeeeseeseeetsees 8 Brown v. Desert Christian Center. (2011) 193 Cal.App.4th 733 [122 Cal.Rptr.3d 590]... 13, 14 City ofColton v. Singletary (2012) 206 Cal.App.4th 751 [142 Cal.Rptr.3d 74]... 7, 18 Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53 [124 Cal.Rptr.2d 507].......cecesecesesreeeeee’ 8, 16 Fabre v. Walton (2002) 436 Mass. 517 [781 N.E.2d 780] .......scsecccsceeeeeeeeeeesseseeeteees 16 Flatley v. Mauro (2006) 39 Cal.4th 299 [46 Cal.Rptr.3d 606]........::ceeeesereeeeeseenees 7 Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255 [82 Cal.Rptr.3d 629]...eee: 12 In re Attorney Discipline System (1998) 19 Cal.4th 582 [79 Cal.Rptr.2d 836]...ccseseeseeeeesseesteees 4 In re Rose (2000) 22 Cal.4th 430 [93 Cal.Rptr.2d 298].......ecceeeseeessereeeseees 4,5 Kajima Engineering and Construction, Inc. v. City ofLos Angeles (2002) 95 Cal.App.4th 921 [116 Cal.Rptr.2d 187] ......eee 8 Law Offices ofAndrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869 [100 Cal.Rptr.3d 771]...eee: 13- Obrien v. Jones (2000) 23 Cal.4th 40 [96 Cal.Rptr.2d 205].........eeeeeseeseeseeeetsereens 8 il People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315 [9 CalRptr.3d 844]...eee 16 Prudential-Bache Securities, Inc. v. Super. Ct. (1988) 201 Cal.App.3d 924 [247 Cal.Rptr. 477] 0...eeesecerceeeeeeee 17 Saleeby v. State Bar (1985) 39 Cal.3d 547 [216 Cal.Rptr. 367] ........ccccecsessceesssesseenseeeees 4 Sheller v. Super. Ct. (2008) 158 Cal.App.4th 1697 [71 Cal.Rptr.3d 207]...eeeeeeeee 8 Simmonsv. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1074 [112 Cal.Rptr.2d 397]........ 15, 16 Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12 [109 Cal.Rptr.3d 329].o.eeeeeeeeeeeeees 7, 18 Singletary v. Local 18 ofthe Internat. Brotherhood ofElectrical Workers (2012) 212 Cal.App.4th 34 [151 CalRptr.3d 107]...eee 14 Union Oil Co. v. Reconstruction Oil Co. (1935) 4 Cal.2d 541 [51 P.2d 81] oeeseseessstseentensenssnneneeneneenees 17 Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180 [25 Cal.Rptr.3d 298]... 14, 15, 16, 17 Westlake North Property Owners Ass’n v. City ofThousand Oaks (9th Cir. 1990) 915 F.2d 1301 [17 Fed.R.Serv.3d. 1363].............. 14 Wilcox v. Super. Ct. (1994) 27 Cal.App.4th 809 [33 CalRptr.2d 446]...eeeseeeeees 7 Willy v. Coastal Corp. (1992) 503 U.S. 131 [112 S.Ct. 1076]eeeeeseeeeteeseeeeeeees 14 Statutes Bus. & Prof. Code, § 6079.5 .......ccccccsscccsscecessesessseesesecseesesseceecesseeeseeeessaneees 4. Bus. & Prof. Code, § 6125 ...ccccccssesssssssssssessseesseessesssessesssessnssssssesssessessseeseesees 4 Bus. & Prof. Code, § 6064 00.0... eeeceeeeeceeceseeeseeesseeeseeeeseceesseesaseececeesesees 4 Code Civ. Proc., § 425.16 00... ceeeccccesseesseseeecesaeceteesseesestsceseteessenes 6, 7, 17, 18 iil Rules Cal. Rules of Court, rule 8.500 .............cccccsssccsssecessscesseccesseeessncatecesseesceneoeecs 3 Cal. Rules of Court, rule 9.12 ..........cccescsscsceesccccccnscceesaceeesneeseesssneeseneesoesees 4 iv CERTIFICATE OF INTERESTED ENTITIES OR PERSONS Pursuant to California Rule of Court, rule 8.208, Respondent, to the best of its knowledge, is unaware of any entities or persons who have a financial or other interest in the outcomeofthis proceeding that would be relevant to the question of disqualification under Canon 3E ofthe Code of Judicial Ethics. DATED: October 15, 2013 KERR & WAGSTAFFE LLP wy LEfo MICHAEL VON LOEWENFELDT Attorneys for Respondent TheState Bar of California To the Honorable Tani Cantil-Sakauye, Chief Justice, and the Honorable Associate Justices of the Supreme Court of California: TheState Bar of California (the “State Bar’’) petitions for review of the decision ofthe Court ofAppeal, Second Appellate District, Division Twofiled for publication on August 21, 2013. This case involves the State Bar’sability to utilize the protections of the Anti-SLAPP statute when faced with baseless, harassing, yet unfortunately all too commonlitigation by attorneys whoeither have been disciplined by this Court or are in the process of attorney disciplinary proceedings. The case presents an issue of first impression, and review is necessary to close an enormousloophole in the anti-SLAPP statute created by the Court of Appeal’s opinion. It is well settled that only this Court has jurisdiction over attorney admission and disciplinary proceedings, and that the superior courts have no powerto hear claimsarising from such proceedings. Despite this clear law, the State Bar andits officers and employees are bombardedbysuits from current or former lawyers whoare either threatened with disciplinary proceedings, in the middle of such proceedings, or who have been disciplined by this Court. The instant case — broughtbyplaintiff Patricia J. Barry to challenge discipline to which she stipulated — is but one example ofthese cases which seekto chill the activity of State Bar prosecutors and State Bar Court judges and to punish the State Bar and its officers and employeesfor performing their public duties as this Court’s administrative arm. Although the claims in this case unquestionably fall within the ambit of the anti-SLAPPstatute, the Court ofAppeal reversed the anti-SLAPP attorneys’ fees awarded to the State Bar. The Court ofAppealheldthat, because the reason Ms. Barry’s complaint had nolikelihood of success was the superior court’s lack of subject matter jurisdiction over State Bar disciplinary measures, the superior court also lacked subject matter jurisdiction to attorneys’ fees against Ms. Barry underthe anti-SLAPP statute, Code of Civil Procedure section 425.16, subdivision (c)(1). That reasoning is both erroneous and dangerous. It is erroneous because the superior court always has jurisdiction to determine its own jurisdiction, andit is well settled across a variety of circumstances that a court can sanction or award fees and costs againstthe plaintiff in an action over which the court has no subject matter jurisdiction. It is dangerous because the Court ofAppeal’s opinion provides a clear roadmap to any malefactor seeking to evade the anti-SLAPPstatute: simply bring the SLAPPaction in a forum without subject matter jurisdiction. The purpose, after all, of a SLAPPis not to win, but instead to harass and burden the defendant. Suits that are frivolous because the court has nojurisdiction are no less harassing and burdensomethan suits that are frivolous for other reasons. This petition is timely filed pursuant to California Rules of Court, rule 8.500(e)(1). A copy ofthe Court of Appeal’s published Opinionis attached hereto. The State Bar did not file a petition for rehearing. I. ISSUES PRESENTED Are fees and costs under the anti-SLAPP statute recoverable where the reason whya plaintiff has no reasonable probability ofprevailing on the merits is the plaintiffs choice to bring the case in a forum that lacks jurisdiction over the dispute? In other words, can a SLAPPplaintiff avoid the penalties provided by the anti-SLAPPstatute by filing the SLAPP in a court without jurisdiction? Il. REVIEW IS NECESSARY TO SETTLE AN IMPORTANT QUESTION OF LAW Rule of Court 8.500(b)(1) provides that review may be ordered “when necessary ... to settle an important question of law.” (Cal. Rules of Court, rule 8.500(b)(1).) Here, that question is simple: whether the anti- SLAPPstatute can be avoided byfiling claims in a court without jurisdiction to grant them. The Court of Appeal’s answer— thefirst of its kind — essentially meansthat a plaintiff like Ms. Barry can bring a wholly frivolous lawsuit challenging activity protected by the anti-SLAPPstatute, yet be free of the penalty for doing so, simply by filing her suit in a court with no jurisdiction to enter judgment for her. That ruling leaves the State Baressentially unprotected from SLAPPsuits by disgruntled or former attorneys and, more importantly, opens a hole in anti-SLAPPjurisdiction that can be exploited by any plaintiffwhose SLAPP lawsuitis jurisdictionally frivolous. Ill. BACKGROUND AND STATEMENT OF THE CASE A. CALIFORNIA’S ATTORNEY DISCIPLINARY SYSTEM No one maypractice law in California without being an active memberofthe State Bar of California, admitted to practice by the California Supreme Court. (Bus. & Prof. Code, §§ 6064, 6125.) The California Supreme Court controls both admissions and attorney discipline (including suspension and disbarment). (Saleeby v. State Bar (1985) 39 Cal.3d 547, 557-58 [216 Cal.Rptr. 367].) The Supreme Court’s control over these issues is absolute. (bid.) The State Bar of California acts as the Supreme Court’s administrative arm for purposes of admission, discipline, and regulation of attorneys. (In re Rose (2000) 22 Cal.4th 430, 438-446 [93 Cal.Rptr.2d 298]; Inre Attorney Discipline System (1998) 19 Cal.4th 5 82, 599-600 [79 Cal.Rptr.2d 836].) Attorney discipline proceedings are prosecuted by the State Bar’s Office of Chief Trial Counsel (“OCTC”) before the State Bar Court. (Bus. & Prof. Code, § 6079.5; Rules Proc. of State Bar, rule 5.4(16).) The State Bar Court providestrial and appellate proceedings designed to generate a disciplinary recommendationto this Court. (Cal. Rules of Court, rule 9.12; Rules Proc. of State Bar, rules 5.111, 5.151, 5.155.) The State Bar Court doesnot actually impose anydiscipline. (dn re Rose, supra, 22 Cal.4th at p. 439.) All State Bar Court recommendations are subject to review by this Court, which makesthe actual and final disciplinary decision. (/d. at pp. 443-45.) In other words,the State Bar does not suspend or disbar attorneys, it only helps this Court by making recommendations. Only this Court has the power to suspendor disbar an attorney. (/d. at p. 442.) B. Ms. BARRY’S STIPULATED DISCIPLINE AND SUBSEQUENT SLAPP SUIT In April 2010, Ms. Barry and the State Bar’s Office of Chief Trial Counsel entered into a Stipulation Re Facts, Conclusions ofLaw and Disposition (basically a plea bargain) resolving twoState Bar disciplinary cases against Ms. Barry. (Respondent’s Appendix [“RA”] pp. 1-24.) The Stipulation provided for at least 2 months of actual suspension ofMs. Barry’s license, and a two year probationary period. (RA p. 4.) By December 2010, however, Ms. Barry had changed her mind and she filed a petition with this Court seeking to set aside herstipulation and dismiss the charges against her.’ (RA pp. 25-29.) A weeklater, she filed this superior court action, which seeks the same relief as well as monetary ' This Court denied Ms. Barry’s writ and suspended her from the practice of law pursuantto the termsofthe stipulation. Barry on Discipline, No. $187076 (Cal. 6/29/2011). damages, a jury trial on the State Bar disciplinary charges, and a host of structural changes to the State Bar. (Appellant’s Appendix [“AA”] pp. 1-7.) The State Bar filed a demurrer to the complaint, as well as a special motion to strike under the anti-SLAPPstatute. (AA pp. 8-12.) The superior court granted the motionto strike, and overruled the demurrer as moot. (AA pp. 16-23.) The State Bar then sought $2,575.04 in attorneys’ fees under Code of Civil Procedure section 425.16(c). (AA p. 26.) The superior court granted that fee motion (AA p.44), and this appeal followed. IV. ARGUMENT A, THE ANTI-SLAPP STATUTE IS DESIGNED TO PREVENT ABUSE OF THE JUDICIAL SYSTEM Enacted in 1992, California’s anti-SLAPP statute, Code of Civil Procedure section 425.16, was designed to combatthe “disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech andpetition for the redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).) The Legislature was attempting to prevent suchsuits from chilling rights “through abuseofthe judicial process.” (Ibid.) As this Court has explained, “While SLAPP suits masqueradeas ordinary lawsuits ... they are generally meritless suits brought primarily to chill the - exercise of free speechorpetition rights by the threat of severe economic sanctions against the defendant, and not to vindicate a legally cognizable right.” (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21 [109 Cal.Rptr.3d 329] [citation omitted].) The ordinary deterrents to meritlesslitigation are insufficient to deter SLAPPsuits because the purpose of a SLAPPsuit is not winning, but rather harassmentofthe defendant. “Because winning is not a SLAPPplaintiff's primary motivation, defendants’ traditional safeguards against meritless actions, (suits for malicious prosecution and abuseofprocess, requests for sanctions) are inadequate to counter SLAPP’s.” (Wilcox v. Super. Ct. (1994) 27 Cal.App.4th 809, 817 [33 Cal.Rptr.2d 446].) As a result, in addition to early dismissal of SLAPP actions, the anti-SLAPP statute provides for mandatory fees where an anti-SLAPP motionis granted. (Code Civ. Proc., § 425.16, subd. (c)(1).) “The anti-SLAPP statute reflects the Legislature’s ‘strong preference for awarding attorney fees to successful defendants.’” (City ofColton v. Singletary (2012) 206 Cal.App.4th 751, 782 [142 Cal.Rptr.3d 74] (citations omitted]; see Flatley v. Mauro (2006) 39 Cal.4th 299, 312 [46 Cal.Rptr.3d 606] [“‘the Legislature has directed that the statute ‘be broadly construed.’”].) B. Ms. Barry’s Suir WAS A SLAPP SUIT An anti-SLAPP motion requires the court to engage in a two-step process. First, the court must decide whether the defendant “has made a threshold showing that the challenged cause of action is onearising from protected activity,” that is, that the particular causes of action to bestricken are covered by the anti-SLAPPstatute. (Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 [124 Cal.Rptr.2d 507].) Once the court determines that the defendant has madethat prima facie showing,as here, the burden shifts to the plaintiff to “demonstrate[] a probability of prevailing on the claim.” (/bid.) Each prong wasclearly met here. The State Bar disciplinary proceedings Ms. Barry was suing to stop (and seek damagesfor) were clearly protected by the right to petition. (Briggs v. Eden Councilfor Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 [81 Cal.Rptr.2d 471]; Kajima Engineering and Construction, Inc. v. City ofLos Angeles (2002) 95 Cal.App.4th 921, 929 [116 Cal.Rptr.2d 187]; Bradbury v. Super. Ct. (1996) 49 Cal.App.4th 1108, 1113 [57 Cal.Rptr.2d 207].) As the Court ofAppeals recognized, Ms. Barry clearly had no probability of prevailing on her claims, because only this Court has oversight concerning State Bar Court proceedings. (Obrien v. Jones (2000) 23 Cal.4th 40, 48 [96 Cal.Rptr.2d 205]; Sheller v. Super. Ct. (2008) 158 Cal.App.4th 1697, 1710 [71 Cal.Rptr.3d 207].) C. Ms. BARRY’S CASEIS FARFROM UNIQUE Regrettably, Ms. Barry is not the first, nor will she be the last of the State Bar’s constituency to seek to interfere with this Court’s original jurisdiction over attorney admissionsanddiscipline and with State Bar’s function as this court’s administrative arm byfiling suit against the State Bar, andits officials and employees. The followinglist of cases, which are the subject of the State Bar’s request for judicial notice (“RJN”) demonstrate the regularity with which the State Bar is sued overits actions in attorney admissionsanddiscipline: 1. Alexander, Jon v. State Bar, et al, San Francisco Sup. Ct., Case No. CGC-12-525073, filed October 12, 2012 (RJN, Exs. A-B). Brown, James Earl v. Guitierrez, et al., Los Angeles Sup. Ct., Case No. BC369840,filed April 23, 2007 (RJN, Exs. C-D). Chavarela, Nicholas v. State Bar et al., Orange County Sup. Ct. Case No. 30-2009-003 11346, filed October 4, 2009, Fourth Dist. Ct. ofApp. Case No. G043727 (RJN, Exs E-F). Dickson, Lorraine v. State Bar, Board ofGovernors, Streeter, Kim, et al., Los Angeles Sup. Ct., Case No. BC470523,filed September28, 2011(RJN, Exs. G-H). Dydzak, Daniel v. Dunn, Joseph, et al., Orange County Sup. Ct., Case No 30-2012-00558031, filed May 2, 2012 (RJN,Exs. I-J). Fletcher, Michael v. State Bar et al., Los Angeles Sup. Ct., Case No. BS129414, filed November 24, 2010 (RJN, Exs. K-L). Foley, Natalia v. State Bar, B. Rodriguez, Los Angeles Sup. Ct., Case No. BC445288,filed September 9, 2010 (RJN, Exs. M-N). Gjerde, Seanv. State Bar, et al., Sacramento Co. Sup. Ct., Case No. 34- 2012-00134070, filed October 19, 2012 (RJN, Exs. O-P). Gottshalk, Ronald v. Public Defender et al, Orange County Sup.Ct., Case No. 30-2010-00359752-CU-NP-CIC,filed April 5, 2010 (RIN, Exs. Q-R). 10. Henschel, Bradford v. State Bar, et al., Los Angeles Sup. Ct., Case No. BC379051, filed December4, 2007, Second Dist. Ct. of App., Case Nos. B206984, B213595 (RJN, Exs. S-T). 11. Joseph, Joel v. the State Bar ofCalifornia, Los Angeles Sup. Ct., Case No. SC103749, filed June 26, 2009, Second Dist. Ct. of App., Case No. B221236 (RJN, Exs. U-V). 12. Kay, Philip E. v. State Bar, et al., San Francisco Sup. Ct, Case No. CGC-10-496869,filed February 16, 2010, First Dist. Ct. Appeal, Case No. A129515, Cal. Supreme Court Case No. $198578 (RJN, Exs. W- X). 13. Kay, Philip E. v. State Bar, et al., San Francisco Sup. Ct., Case No. CV 10-502372, filed August 6, 2010, First Dist. Ct. Appeal, Case Nos. A132643, A134111, A137989 (RJN, Exs. Y-Z). 14. Kay, Philip E. v. State Bar, et al., San Francisco Sup. Ct., Case No. CGC-11-510717, filed May 4, 2011, First Dist. Ct. Appeal, Case Nos. A134205, A137989 (RJN, Exs. AA-BB). 15. Kay, Philip E., Robin Kay, Chris Enos v. State Bar, et al., San Francisco Sup. Ct., Case No. CGC-11-514255, filed September 4, 2011 (RJN, Exs. CC-DD). 16. Missud, Patrick v. State Bar ofCalifornia, San Francisco Sup. Ct., Case No. CGC-13-533811, filed September 3, 2013 (RJN, Ex. EE). 17. Morris, Gregory A. v. State Bar ofCalifornia, et al., San Francisco Sup. Ct., Case No. CGC 06-450766, filed November 29, 2006 (RJN, Exs. FF-GG). 18. Morris, Gregory A. v. State Bar ofCalifornia, et al. San Francisco Sup. Ct. , Case No. CGC 08-471504 (RIN, Exs. HH-I). 19. Morrowatti, Nasrin v. State Bar ofCalifornia, Los Angeles Sup.Ct., Case No. BC 347921, filed February 23, 2006, Second Dist. Ct. Appeal, Case No. B196392 (RJN, Exs. JJ-KK). 20. Oxman, Brian v. Chang, Alec, et al., Los Angeles Sup. Ct., Case No. BC516601, filed July 29, 2013 (RIN, Ex. LL). 21. Scurrah, Robert v. State Bar et al., Orange County Sup. Ct., Case No. 30-2012-00595756, filed September 5, 2012 (RJN, Exs. MM-NN). 22. Spadaro, Charlotte v. Phyllis Williams, The State Bar ofCalifornia, San Bernardino Co. Sup. Ct., Case No. CIVRS1203310, filed April 30, 2012 (RJN, Exs. OO-PP). 23. Taylor, Swazi v. State Bar, Los Angeles Sup. Ct., Case No. BC476842, filed January 18, 2012 (RJN, Exs. QQ-RR). 10 24. Viriyapanthu, Paul v. The State Bar ofCalifornia, Viveros, Orange County Sup. Ct., Case No. 30-2010-00418393, filed October 15, 2010 (RJN, Exs. SS-TT). In sum,in the last six years alone the State Bar has been sued more than 20 times in superior court — in somecases by the same disgruntled disciplined attorney filing suit over and over again, despite this Court’s original jurisdiction over attorney admissions and discipline. In all of these cases, the State Bar is subject to the normal burdensoflitigation — evidentiary preservations, discovery, including depositions, document productions and propounded written discovery, and motion practice — until such time as the case is dismissed,all for a case where the superior court lacks jurisdiction.” D. LACK OF SUPERIOR COURT JURISDICTION TO INTERFERE WITH STATE BAR COURT PROCEEDINGS DOES NOT IMMUNIZE A SLAPP PLAINTIFF FROM FEES UNDER THE ANTI-SLAPP STATUTE While not questioning the superior court’s finding that Ms. Barry’s case falls within the anti-SLAPPstatute, the Court ofAppeal held that the superior court’s lack ofpowerto review disciplinary proceedingsalso 2 This list, moreover, is not exhaustive. The State Bar is also routinely sued by individuals whofile complaints with the State Bar regarding either their own attorney or sometimes opposing counsel, and whentheyare dissatisfied with the resolution of their complaint, they, too, file suit in the superior court. Disciplined attorneys, unsuccessful applicants, and members of the public alike all file suit in federal court challenging the State Bar’s performanceofits function as this court’s administrative arm in attorney admissionsanddiscipline. 1] meant the superior court had no powerto award anti-SLAPP fees.’ That holding misconstrues the nature of an anti-SLAPP fee and cost award. Asdiscussed above, the purpose ofthe anti-SLAPPstatute is to deter and penalize baseless lawsuits that arise from protected activity. Ms. Barry’s argument, accepted by the Court ofAppeal, that fees cannot be awarded againsther for abusing the judicial process as long as her abusive conduct takes the form of a suit where there is a lack of powerto grant the relief she seeks is wholly inconsistent with the Legislative intent behind the anti-SLAPPstatute. Although noprior published anti-SLAPP case specifically dealing — with the limits on superior court powerover State Bar disciplinary proceedings, analogouscase law supports an awardoffees and costs here. First, anti-SLAPP law is clear that fees can be awarded evenifthe case is voluntarily dismissed before the anti-SLAPP motion is heard. It is settled law that a trial court loses jurisdiction over an actionifthe plaintiff enters a voluntary dismissal. (Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 261 [82 Cal.Rptr.3d 629].) In that circumstance,thetrial court has no jurisdiction to adjudicate an anti-SLAPP motion. It does, 3 The Court ofAppeal’s decision was supported by Ms. Barry’s paradoxical argumentthat the claim she herself brought below wasnot one over which the court had jurisdiction. As a resultofthe Court ofAppeal’s ruling, Ms. Barry is subject to no sanction whatsoeverfor herdeliberate filing of a claim she admits wasbaseless. 12 however, have the power to award anti-SLAPP fees and costs even though it has no jurisdiction over the underlying merits: Uponthe properfiling of a request to voluntarily dismiss a matter, the trial court loses jurisdiction to act in the case, “except for the limited purpose of awarding costs and statutory attorney fees.” ... Thus, here, when plaintiff dismissed its case at a time when defendants’ anti-SLAPP motion was pending,the trial court continued to have jurisdiction overthe case only for the limited purpose of ruling on the defendants’ motion for attorney fees and costs. (Law Offices ofAndrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 876, 879 [100 Cal.Rptr.3d 771].) This rule is directly analogousto the situation presented here. Although the reason whyjurisdiction is lacking differs, the result is precisely the same — the court has no powerto reach the merits, but does have the power to award fees and costs. Second,a jurisdictional dismissal generally does not eliminate the powerto reach incidental issues such as costs or fees. Thus, in Brownv. Desert Christian Center (2011) 193 Cal.App.4th 733 [122 Cal.Rptr.3d 590], a premisesliability and negligence action was dismissed for lack of subject matter jurisdiction after the defendant proved that the claim was within the exclusive jurisdiction of the workers’ compensation system. (Ud. at p.739.) Like Ms. Barry, the plaintiff urged that the court had no jurisdiction to award costs onceit dismissed his case for lack of jurisdiction. Although thetrial court accepted that argument, the Court of 13 Appeal reversed, holding that the court’s jurisdiction to decide its own jurisdiction necessarily included an award ofcosts incidental to a jurisdictional dismissal. [T]he trial court’s finding that defendant prevailed on the merits of its jurisdictional defense did not operate as a double-edged sword that brought a complete victory in the lawsuit but, with the samestroke, extinguishedthetrial court’s power to award costs incurred in achieving that victory. . . [T]he trial court’s power to award costs survived as an incidentofthe resulting judgment of dismissal. (d. at p. 741 [emphasis in original]; cf Singletary v. Local 18 ofthe Internat. BrotherhoodofElectrical Workers (2012) 212 Cal.App.4th 34, 47 [151 Cal.Rptr.3d 107] [reviewing for abuse of discretion decision not to award sanctions for filing of action without jurisdiction].) Federal cases apply the samerule, recognizing that“there are some circumstances in which federal courts may impose attorney’s fees or costs, even wherethe court eventually proves to be without subject-matter jurisdiction.” (Willy v. Coastal Corp. (1992) 503 U.S. 131, 136 [112 S.Ct. 1076].) “Thus, even if a court does not have jurisdiction over.an underlying action, it may have jurisdiction to determine whetherthe parties have abused the judicial system and whethersanctions are appropriate to remedy such abuse.” (Westlake North Property Owners Ass’n v. City ofThousand Oaks (9th Cir. 1990) 915 F.2d 1301, 1303 [17 Fed.R.Serv.3d. 1363].) The Court ofAppeal cited Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180 [25 Cal.Rptr.3d 298], in support of its decision to 14 determinethat lack of subject matter jurisdiction excludesa frivolous lawsuit from the protection of the anti-SLAPPstatutory scheme. Varian involved a matter that wentto trial while the appeal of the denial of an anti- SLAPP motion was pending. Jd. at 187-188. The plaintiffs prevailed. Varian Medical Systems, Inc., supra, 35 Cal.4th at p. 188. The Court ofAppeal dismissed the anti-SLAPP appealas moot. /bid. In the appeal from the judgment, the Court ofAppeal affirmed the trial court’s decision to go forward with the trial while the appeal of the anti-SLAPP denial was pending, finding that the denial of an anti-SLAPP motion was a matter separate from the merits of the lawsuit, and the subsequenttrial had “no direct impact on the appeal from the order” denying the motion. Jbid. It held that the stay was discretionary, because if the stay was automatic it would encouragethe filing ofmeritless anti- SLAPP motionsasa trial delay strategy. Ibid. This Court granted review solely on the issue ofwhether the denial of an anti-SLAPP motion automatically stays the trial court proceedings. Varian Medical Systems, Inc., supra, 35 CalAth at p. 188. This Court reiterated that the purpose of the anti-SLAPPstatute was to end meritless lawsuits that seek to deplete defendants’ energy and resources early and without great cost. Varian Medical Systems, Inc., supra, 35 Cal.4th at p. 192, citing Simmonsv. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1074 [112 Cal.Rptr.2d 397], and Equilon Enterprises, 15 LLC, supra, 29 Cal.4th at p. 65. In context, the anti-SLAPPstatute allows the trial court to evaluate the merits of a lawsuit using a summary judgment-like procedure at an early stage of the litigation. Varian Medical Systems, Inc., supra, 35 Cal.4th at p.192, citing Simmons, supra, 92 Cal.App.4th at p. 1073. Becausethe granting of an anti-SLAPP motionresults in a dismissal ofthe lawsuit, this Court determined that such a dismissal would be irreconcilable with a judgmentfor the plaintiffs on the merits after a trial court proceeding. Varian Medical Systems, Inc., supra, 35 Cal.4th at p. 193. The Court pointed out that the trial court proceeding wasinherently inconsistent with the appeal because the appeal seeks to avoid that very proceeding, observing that: “{t]he point ofthe anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.”... []“The protections afforded by the anti-SLAPPstatute against the harassment and burdensoflitigation are in large measurelost if the petitioner is forcedto litigate a case to its conclusion before obtaining a definitive judgment through the appellate process”]. Ibid., citing People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1317 [9 Cal.Rptr.3d 844] (Brar) and Fabre v. Walton (2002) 436 Mass. 517 [781 N.E.2d 780, 784]. In that regard, the Court found that the denial of an anti-SLAPP motion was nodifferent from the denial of a motion to compel arbitration. Varian Medical Systems, Inc., supra, 35 Cal.4th at p. 193,citing 16 Prudential-Bache Securities, Inc. v. Super. Ct. (1988) 201 Cal.App.3d 924, 925 [247 Cal.Rptr. 477].) The Court found that an anti-SLAPP motion goes “to the merits of the issues involved in the main action”to the extentit addresses the “probability...the plaintiff will prevail on the claim.” (Varian Medical Systems, Inc., supra, 35 Cal.4th at p. 193, citing Union Oil Co. v. Reconstruction Oil Co. (1935) 4 Cal.2d 541, 542-545 [51 P.2d 81] and CodeCiv.Proc. § 425.16, subd. (b)(1) [Emphasis added].) In particular, this Court observedthat the statute’s legislative history supported this conclusion: “[b]ecause we must follow the Legislature’s intent, we agree with Mattel, supra, 99 Cal.App.4th 1179, 121 Cal.Rptr.2d 794, and hold that an appeal from the denial of an anti-SLAPP motion automatically stays further trial court proceedings on the merits.” Varian Medical Systems, Inc., supra, 35 Cal.4th at p. 195. This Court determined that this conclusion furthered the legislative intent of the anti-SLAPPstatute because the benefit of avoiding a trial court’s refusal to stay an action pending the appeal of an anti-SLAPP denial outweighed the potential to encourage meritless anti- SLAPP motionsasa trial delay tactic. /bid. In contrast here, upholding the Court ofAppeal’s determination would encourage those individuals who seek to harass by filing frivolous lawsuits to file in a court that lacks jurisdiction, knowing they would be insulated from the protections that the anti-SLAPPstatute affords — a discovery stay, early resolution of the lawsuit, and attorneys’ fees to the prevailing party. 17 Theserules all support the award of fees here. As discussed above, the purposeofthe anti-SLAPPstatute is to prevent and remedy abuseofthe judicial system. (Simpson Strong-Tie Co., supra, 49 Cal.4th at p. 21; Code Civ. Proc., § 425.16, subd. (a).) The mandatory award ofattorney fees to a defendant whois sued in a meritless SLAPP action is an important part of that Legislative purpose. (City ofColton, supra, 206 Cal.App.4th at p. 782.) There is no basis for concluding that the court cannot carry out that Legislative directive when the means by which the judicial system was abused wasa lawsuit where the superior court clearly lacked the powerto grant the relief sought. Vv. CONCLUSION With the anti-SLAPPstatute, the Legislature enacted a speedy mechanism for dismissing SLAPP suits and sanctions providing a monetary protection for defendants for the cost of doing so. The Court ofAppeal’s novel decision openeda large gap in that statutory scheme, allowing plaintiffs to file SLAPP suits without fear ofpaying defense fees and costs so long as they file in a court where they cannot win (becausethe court has no jurisdiction). Such suits are models of the baseless litigation the anti- SLAPPstatute is intended to address. The State Bar respectfully requests this Court to grant review to correct this error of law. 18 DATED: October 15, 2013 Respectfully submitted, KERR & WAGSTAFFE LLP 6 LEE Michael von Loewenfeldt Attorneysfor Respondent THE STATE BAR OF CALIFORNIA 19 CERTIFICATION OF COMPLIANCE WITH WORD LIMIT Pursuant to Rules of Court, rules 8.204(c)(1) and 8.504(d)(1),I certify that this Brief is proportionately spaced, has a typeface of 13-point, proportionally-spaced font, and contains 5,309 words. DATED: October 15, 2013 KERR & WAGSTAFFE LLP By AG MICHAEL VON LOEWENFELDT Attorneysfor Respondent THE STATE BAR OF CALIFORNIA 20 Filed8/21/13 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO PATRICIA J. BARRY, B242054 Plaintiff and Appellant, (Los Angeles County v. THE STATE BAR OF CALIFORNIA, Defendant and Respondent. Super. Ct. No. BC452239) APPEAL from an order of the Superior Court of Los Angeles County. Deirdre Hill, Judge. Reversed. Patricia J. Barry, in pro. per., for Plaintiff and Appellant. Kerr & Wagstaffe and Michael von Loewenfeldt; State Bar of California Office of General Counsel, Starr Babcock, Lawrence C. Yee, and Danielle A. Lee for Defendant and Respondent. Plaintiff and appellant Patricia J. Barry (plaintiff) appeals from the trial court’s order awarding $2,575.04 in attorney fees under Code of Civil Procedure section 425.16, subdivision (c)! to defendant and respondent The State Bar of California (the State Bar) as the prevailing defendanton a special motionto strike? plaintiff's complaint. In her complaint, plaintiff sought to vacate a stipulation she had entered into with the State Bar regarding twodisciplinary actions against her. Thetrial court concludedthat all of plaintiff's causes of action arose from the State Bar disciplinary proceedings-- a protected activity under section 425.16. The trial court further concludedthatplaintiff had no reasonable probability of prevailing on her claims because, among other reasons, the court had no subject matter jurisdiction over State Bar disciplinary matters. Thetrial court granted the anti-SLAPP motion and awarded attorney fees to the State Bar as the prevailing party on that motion. Plaintiff challenges the attorney fee award on jurisdictional grounds, arguing that the trial court’s lack of subject matter jurisdiction precluded it from awarding attorney fees under section 425.16.3 We agree and reverse the order awarding attorneyfees. BACKGROUND In April 2010, plaintiff and the State Bar’s Office of Chief Trial Counsel entered into a stipulation resolving two State Bar disciplinary cases againstplaintiff. In December 2010, plaintiff sought to revoke the stipulation by filing a petition with the California Supreme Court to set aside the stipulation and dismiss the disciplinary charges - against her. After the Supreme Court denied plaintiff's petition, she filed the instant 1 All further statutory references are to the Code of Civil Procedure unless otherwise stated. 2 The special motionto strike is commonly referred to as an anti-SLAPP motion. 3 Plaintiff abandoned her appeal of the order granting the anti-SLAPP motion and the judgment of dismissal based on that order. Her appellate challenge is limited to the order awarding attorney fees. action, seeking the samerelief as well as monetary damagesand jury trial on the State Bar disciplinary charges. The State Bar filed a demurrer, as well as an anti-SLAPP motion. Thetrial court granted the anti-SLAPP motion,finding that the State Bar had metits burden of demonstrating that each ofplaintiff's causes of action arose from State Bar disciplinary proceedings-- a protected activity under section 425.16. Thetrial court further found thatplaintiff failed to establish a reasonable probability of prevailing on the merits because, amongotherreasons,the trial court lacked jurisdiction to adjudicate plaintiffs claims. Thetrial court then granted the State Bar’s motion for $2,575.04 in attorney fees as the prevailing party under section 425.16, subdivision (c), and this appeal followed. DISCUSSION Section 425.16, subdivision (c) mandates an award of attorney fees and costs toa defendant whoprevails on an anti-SLAPP motion.’ (§ 425.16, subd. (c); Ketchum v.. Moses (2001) 24 Cal.4th 1122, 1131.) Whetheror not thetrial court hadjurisdiction to award attorney fees pursuant to section 425.16, subdivision (c) is a question of law that wereview de novo. (Brown v. Desert Christian Center (2011) 193 Cal.App.4th 733, 737 (Brown).) Thetrial court properly determined that it did not have subject matter jurisdiction over the claims alleged in plaintiff’s complaint. The powerto discipline attorneys in California is an “expressly reserved, primary, and inherent power” of the California 4 Section 425.16, subdivision (c) provides: “(1) Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motionto 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 frivolousor is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s feesto a plaintiff prevailing on the motion, pursuant to Section 128.5. [§] (2) A defendant whoprevails on a special motionto strike in an action subject to paragraph (1) shall not be entitled to attorney’s fees and costs if that cause of action is brought pursuant to Section 6259, 11130, 11130.3, 54960, or 54960.1 of the Government Code. Nothing in this paragraph shall be construed to prevent a prevailing defendantfrom recovering attorney’s fees and costs pursuant to subdivision (d) of Section 6259, 11130.5, or 54690.5.” Supreme Court. (Obrien v. Jones (2000) 23 Cal.4th 40, 48; Saleeby v. State Bar (1985) 39 Cal.3d 547, 557; Bus. & Prof. Code, § 6100.) Although the State Bar Act originally allowed any court to administer attorney discipline, “in 1951, the State Bar Act was amended to exclude superior courts and appellate courts from exercising such jurisdiction, leaving the Supreme Court as the sole judicial entity with jurisdiction over attorney discipline. (Bus. & Prof. Code, §§ 6087, 6100; Jacobs v. State Bar (1977) 20 Cal.3d 191, 196.) Thus, in California, the inherent judicial power of the superior court does not extend to attorney disciplinary actions. That poweris exclusively held by the Supreme Court and the State Bar, acting as its administrative arm. [Citation.]” (Sheller v. Superior Court (2008) 158 Cal.App.4th 1697, 1710.) “{I]n the absence of subject matter jurisdiction, a trial court has no power‘to hear or determine [the] case.’ [Citation.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196.) Thetrial court’s lack of subject matter jurisdiction in this case precludedit from ruling on the State Bar’s anti-SLAPP motion, an adjudication that necessarily involved a determination of the merits ofplaintiff's claims. “Section 425.16 ... establishes a procedure where thetrial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation.... [{] [G]ranting a motionto strike under section 425.16 results in the dismissal of a cause of action on the merits... .” (Varian Medical, at pp. 192-193.) The procedural posture of the instant case distinguishesit from Brown, supra, 193 Cal.App.4th 733, on which the State Bar relies as support for the attorney fees award under section 425.16. Brown involved the dismissal of an action based on lack of subject matter jurisdiction after the trial court determined that the matter came within the exclusive jurisdiction of the workers’ compensation system. (Brown,at p. 737.) At issue was the defendant’s request for costs pursuant to section 1032 as the prevailing party in the action. Theappellate court in Brown concludedthata trial court has the authority “to decide in the first instance whether it has jurisdiction of the subject matter and the parties, and whetherit also has jurisdiction to act in a particular manner.. . .’ [Citations.]” (Brown,at p. 740.) After concludingthat the trial court had properly exercisedits “jurisdiction to determine its own jurisdiction,” the appellate court in Brown held that the court “also had jurisdiction to award costs” under section 1032 as an incident of the judgment. (/bid.) Here, in contrast, the trial court did not exerciseits “Jurisdiction to determine its own jurisdiction,” but rather adjudicated the merits of the action by way of an anti-SLAPP motion. Becausethetrial court had nojurisdiction to rule on the anti-SLAPP motion,it also lacked jurisdiction to award attorney fees under section 425.16, subdivision (c). It waserror forthetrial court to do so. (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1239 [order issued by a court lacking subject matter jurisdiction is void].) _ DISPOSITION The order awarding attorney fees is reversed. Plaintiff is awarded her costs on appeal. CERTIFIED FOR PUBLICATION iJ. CHAVEZ Weconcur: ,P.J BOREN , J.* FERNS * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 5 PROOF OF SERVICE I, Lisa Ramon, declare that I am a resident ofthe State of California, over the age of eighteen years, and not a party to the within action. My business address is 100 Spear Street, 18th Floor, San Francisco, California 94105. On October 18, 2013, I served the following document(s): PETITION FOR REVIEW on the parties listed below as follows: Patricia J. Barry Los Angeles Superior Court 634 Spring Street, #823 Stanley Mosk Courthouse Los Angeles, CA 90014 111 North Hill St. Los Angeles, CA 90012 California CourtofAppeal 2nd Appellate District, Division 2 Ronald Reagan State Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 Via Electronic Submission to California Court ofAppeal (Petition for Review only) Byfirst class mail by placing a true copy thereof in a sealed envelope with postage thereon fully prepaid and placing the envelope in the firm's daily mail processing center for mailing in the United States mail at San Francisco, California. I declare under penalty ofperjury under the lawsofthe State of California that the foregoing is true and correct. Executed on October 18, 2013 at San Francisco, California. C~ Lisa Ramon