Thursday, August 22, 2013

Barry v. State Bar (Cal. Ct. App. - Aug. 22, 2013)

For a full 24 hours after I read this opinion, my thought about it was this:

I don't even understand it.  It's incomprehensible.  It couldn't be more wrong.  I don't even understand how anyone could even possibly come out this way.

That's a slight overstatement.  I "understand" how a court could decide something like this.  But it seemed -- and seems -- to be the result of a basic, really quite fundamental mistake.

The issue is a pretty straightforward one:  Can a court grant attorney's fees to a prevailing defendant on an anti-SLAPP motion when the reason the complaint lacks merit (i.e., the defendant demonstrates in part two of the test) is that the court lacks jurisdiction?

At some level, I "get" what the Court of Appeal is saying here.  Something it says in an incredibly short (five double-spaced) pages.  It says that if the defendant's correct that the court doesn't have jurisdiction, then the court doesn't have jurisdiction to make an award of fees either.  So, here, it reverses a fee award.  Despite the fact the defendant properly prevailed on its anti-SLAPP motion.

As I said, I couldn't fathom how the Court of Appeal could possibly come out this way.  It seems to have made a basic mistake.

Courts indisputably have jurisdiction to determine their jurisdiction.  So, for example, if you improperly file a lawsuit in federal court in a nondiversity case, and either punch the judge or do something else that subjects you to a sanction, you can still be punished even if the court dismisses the lawsuit for lack of subject matter jurisdiction.  Plaintiff's decision to file the lawsuit in federal court grants the court the jurisdiction to decide whether it has jurisdiction, and alongside that power is the power to make whatever orders -- whether they be discovery orders, sanction orders, etc. -- that happen to arise in the meantime.  That's been the law for centuries, and is beyond dispute.  So even a court that "lacks" jurisdiction still has power over parties (both the plaintiff, who voluntarily filed there, as well as the defendant, who decided to show up) in the meantime.  A power that includes the authority to make fee (and other) awards despite the fact the fact that it "lacks" jurisdiction.

That basic principle seemed -- and still seems -- squarely dispositive.

The Court of Appeal recognizes this principle, but holds that it's inapplicable to anti-SLAPP motions because the second part of those motions decides the "merits" of the lawsuit.  The Court of Appeal holds that the lack of jurisdiction prevents the trial court from doing so, hence there's no ability to award fees.

I'm very much unpersuaded.  For at least two reasons.  First, the second part of an anti-SLAPP motion does not, in fact, necessarily decide the "merits".  It merely determines whether the lawsuit will succeed, an inquiry that could -- but definitely need not -- decide the merits.

The present case is a perfect example.  Plaintiff's an attorney who entered into a stipulation with the State Bar of California in response to two disciplinary proceedings brought against her, and later decided that she wasn't psyched about those agreements, so filed a lawsuit against the State Bar to try to get out of them.  In response, the Bar filed an anti-SLAPP motion, which it won, proving in the first part of the test that the suit arose out of protected activity (the filing of disciplinary charges) and in the second part that plaintiff would lose the lawsuit because the trial court had no jurisdiction to vacate stipulations in state bar court (since any such motion would have to be filed in that latter court instead).

Defendant thus won part one by proving it engaged in protected activity and part two by proving that there was no jurisdiction.  That wasn't a determination of the "merits".  It was a determination of jurisdiction.  And that's something the trial court's clearly permitted to do.  As well as make any ancillary orders associated therewith.  Jurisdiction to determine jurisdiction.

So I don't get why the Court of Appeal thinks this principle is inapt.  Seems entirely apt to me.

There's another doctrinal problem with the Court of Appeal's holding as well.  If the absence of jurisdiction prevents the trial court from making a statutorily authorized fee award, then why doesn't it similarly preclude the court from making a statutorily authorized cost award?  We know -- and precedent is clear -- that trial courts are allowed to do the latter.  Why are they any different?  The Court of Appeal seems to think that anti-SLAPP motions are "different" because with "cost" awards a trial court's purportedly only determining jurisdiction, but that's the only thing that an anti-SLAPP motion that objects (in part two) to jurisdiction is doing as well.  If the absence of jurisdiction precludes a fee award in anti-SLAPP cases, seems to me like it's got to preclude a cost award as well.  But it doesn't.

That doesn't make any doctrinal sense.  Jurisdiction is jurisdiction.

The anti-SLAPP motion basically incorporates the English rule for prevailing defendants when plaintiffs file a lawsuit in response to protected activity.  Normally, costs don't include fees.  But in SLAPP cases, they do.  If a court has the power to award costs in SLAPP cases (which they clearly do), those costs can include fees in such cases as well.  That the court "lacks jurisdiction" matters equally to cost and fees.  Which is to say, not at all.

Not only does the Court of Appeal's holding make very little doctrinal sense, but it's also fundamentally bad policy.  The Legislature wants to deter Strategic Lawsuits Against Public Participation.  Not only frivolous ones, but meritless ones as well.  Including but not limited to ones like this one.  Plaintiffs who file a SLAPP suit in a forum without jurisdiction (including this one) seem at least equally -- as perhaps more -- culpable (and in need of deterrence) as people who file lawsuits that fail on the merits.  They shouldn't be able to get out of fee awards by essentially saying:  "Oh, well, yeah, I filed in response to your protected activity, but I filed in a forum without jurisdiction, so ha, you can't get fees from me."

That's bad policy.  Your decision to file in a jurisdictionally improper forum shouldn't immunize you from the normal fee award attendant to filing a SLAPP suit.  Doesn't make any sense.

Plus, it generates deleterious strategic choices as well.  Ones which everyone should both recognize and take advantage of in appropriate cases.

Under the "Shaun" rule (i.e., where you recover fees if successful), if you're a defendant in a SLAPP case, you've got an incentive to file your anti-SLAPP motion and make all the applicable (and true) arguments as to why plaintiff's lawsuit will and should be dismissed.  If you win, you get your fees.

But under the Court of Appeal's rule, if you want your fees, you're often better off omitting from part two of the test your argument that the court lacks jurisdiction.  Instead, just argue the merits.  That way, if you win, you get your fees.  Rather than simply a jurisdictional dismissal in which (according to the Court of Appeal's holding) the trial court's precluded from awarding fees as a matter of law.  And if you lose the anti-SLAPP motion, well, you can always appeal.  As well as subsequently raise any jurisdictional objections based on lack of subject matter jurisdiction.  Since those aren't waived.

That makes strategic sense for a party.  But no sense for a court.  We want to know if there's jurisdiction.  We don't want parties sandbagging objections and preserving them for later merely because of some crazy principle that precludes the normally available recovery of fees whenever a party also identifies the fact that the court lacks jurisdiction.  Again:  Doesn't make sense.

So those are my thoughts.  Ones that were sufficiently strong that I thought that the Court of Appeal was crazy to hold otherwise.

I still hold to my beliefs about the merits.  But as I sometimes do, I gave my wife -- who's incredibly smart (and also a law professor who teaches Civil Procedure) -- a factual hypothetical that raised this issue and that did not indicate which way I felt about it.  Her initial reaction was the same one as the Court of Appeal.

Mind you, I think I prevailed in the resulting argument (er, I mean, "discussion") about whether her initial impression was right.  But the fact that she was initially inclined towards the Court of Appeal's view at least made me realize that the Court of Appeal wasn't crazy.  Apparently someone rational can have at least that same initial sense as well.  Or at least someone (like my wife) with a legal education from a seriously deficient law school.

So I remain steadfast in my belief that the Court of Appeal got this one wrong.  In a case that may make quite a big deal.  Because anti-SLAPP motions are pretty darn common.  And this opinion creates a huge incentive not to make even entirely appropriate (and correct) jurisdictional objections as part of that motion.

Unfortunately, it doesn't make economic sense for the State Bar to file a petition for review with the California Supreme Court.  Since the fee award they lose out on here is for all of a whopping $2,575.04.

But I still hope they do.  Because as both a doctrinal and policy matter, I think the Court of Appeal's holding is pretty bad.

This may also be one of those exceptionally rare cases where the right thing to do is simply to depublish the opinion.  I care not about getting $2500 from Patricia Barry.  Even assuming she'd ever actually pay it.  I care much more about the resulting legal principle.  As long as that goes away, I'm pretty much fine.  She gets off easy, but at least no bad (and controlling) holding that binds future trial courts.

But for now, at least, the decision stands.