Hutton v. Hafif
Filed 5/10/05 Hutton v. Hafif CA2/5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
TERRY HUTTON, Plaintiff and Respondent, v. HERBERT HAFIF et al., Defendants and Appellants. | B154184 (Los Angeles County Super. Ct. No. BC249367) |
APPEAL from an order of the Superior Court of Los Angeles County, Gregory OBrien, Judge. Reversed with directions.
Law Offices of Herbert Hafif, Greg K. Hafif, Jeanne A. Sterba, Miguel G. Caballero; Law Offices of James J. Moneer and James J. Moneer for Defendants and Appellants.
Cheong, Denove, Rowell, & Bennett, John F. Denove and John D. Rowell for Plaintiff and Respondent.
I. INTRODUCTION
This intentional severe emotional distress infliction lawsuit brought by plaintiff, Terry Hutton, is before us on transfer from the Supreme Court. It arises out of a series of lawsuits involving the Law Offices of Herbert Hafif and Herbert Hafif and Mr. Huttons wife, Terrie Hutton. Mr. Hutton, the plaintiff here, subsequently filed this intentional severe emotional distress infliction action against the Law Offices of Herbert Hafif, Mr. Hafif, Cynthia D. Hafif, and Gregory K. Hafif (collectively, the Hafifs). At issue is the Hafifs Code of Civil Procedure[1]section 425.16 special motion to strike. Retired Judge Gregory OBrien denied the special motion to strike. On appeal, we concluded the motion should have been granted. The Supreme Court granted review and then transferred this matter to us for reconsideration in light of Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley).
Mr. Hutton argues the Hafifs asserted protected conductthe lawsuit they brought against his wifeviolated Business and Professions Code section 6094, subdivision (a), was illegal as a matter of law, and thus did not fall within the purview of section 425.16. We find: the Hafifs made a threshold showing the challenged cause of action arose from protected activity; the Hafifs do not concede and the evidence does not conclusively establish illegality as a matter of law; and Mr. Hutton failed to demonstrate a probability of prevailing on his intentional severe emotional distress infliction claim. Therefore, the Hafifs special motion to strike should have been granted. We reverse Retired Judge OBriens order denying the special motion to strike. Upon issuance of the remittitur, the special motion to strike is to be granted and any issue concerning attorneys fees is to be pursued in compliance with section 425.16, subdivision (c) and California Rules of Court, rule 3.1702(c).
II. BACKGROUND
A. The Underlying Lawsuits
1. The First Action
Mr. Huttons wife, Ms. Hutton, is a former client of Mr. Hafif and his firm. Mr. Hafif and his firm represented Ms. Hutton in a discrimination action against GTE in 1991 and 1992. After the GTE action settled, Ms. Hutton and Mr. Hafif and his firm became involved in a dispute about litigation costs. Between June 1993 and February 1994, a number of former clients of Mr. Hafif and his firm, including Ms. Hutton, filed a series of State Bar complaints and lawsuits against Mr. Hafif and his firm. On June 29, 1993, Ms. Hutton filed a legal malpractice action against Mr. Hafif and his firm. This first action sought in part to recover costs that Mr. Hafif and his firm kept from the GTE settlement. (Terrie M. Hutton v. Law Offices of Herbert Hafif (Super. Ct. Los Angeles County, 1993, BC084002.) Ms. Hutton was represented in the legal malpractice action by an attorney named Sasson Sales. A demurrer dismissal was entered. Retired Los Angeles Superior Court Judge Melvin Grover imposed $25,000 in sanctions pursuant to section 128.5 against Ms. Hutton and her attorney, Mr. Sales, for filing a frivolous lawsuit in bad faith. The sanctions order was entered on October 7, 1994. The dismissal judgment and sanctions order were reversed on appeal by our colleagues in Division Two of this appellate district. (Terrie Hutton v. Hafif (Aug. 20, 1997, B088405) [nonpub. opn.].) Our Division Two colleagues found Ms. Hutton had stated a fiduciary duty breach cause of action.
2. The Second Action
On May 6, 1994, Mr. Hafif and his firm filed an action against Ms. Hutton and seven others in Orange County Superior Court. (Law Offices of Herbert Hafif v. Max Killingsworth (1996, No. 729347.) It is this lawsuit that purportedly caused Mr. Hutton to suffer severe emotional distress. For purposes of clarity, we will refer to this lawsuit as the Killingsworth action. The various complaints in the Killingsworth action alleged Ms. Hutton and others had conspired to coerce financial concessions from Mr. Hafif and his firm. The alleged conspiracy involved filing frivolous legal malpractice lawsuits against Mr. Hafif and his firm and disseminating false information about them. The original Killingsworth complaint asserted causes of action against Ms. Hutton and others for fraud, criminal profiteering, tortious interference with business relations, slander and libel, and privacy invasion. In the second amended Killingsworth complaint, filed on October 13, 1994, Mr. Hafif and his firm alleged causes of action for malicious prosecution, defamation, and tortious interference with business relationships. The second amended Killingsworth complaint alleged that Ms. Hutton had filed a legal malpractice action against Mr. Hafif and his firm. (As discussed above, Retired Judge Grover found the operative complaint in Ms. Huttons legal malpractice action was frivolousa ruling later reversed on appeal.) The second amended Killingsworth complaint also alleged Ms. Hutton and her coconspirators publicized and re-publicized the content of confidential communications which had been made against Mr. Hafif and his firm to the State Bar. These disclosures were allegedly accomplished with the intent to compel Mr. Hafif and his firm to abandon their claims for fees and costs. Retired Orange County Superior Court Judge Leonard Goldstein denied Ms. Huttons summary judgment motion. Retired Judge Goldsteins minute order states Ms. Huttons summary judgment motion was denied. Retired Judge Goldstein found triable issues of material fact existed as to whether a conspiracy actually existed. In reaching that conclusion, Retired Judge Goldstein relied upon diaries Ms. Hutton had kept outlining her actions and those of her alleged coconspirators.
On December 17, 1996, Retired Orange County Superior Court Judge Robert E. Thomas granted Ms. Huttons special motion to strike the second amended Killingworth complaint pursuant to section 425.16. In connection with that motion, Retired Judge Thomas ruled Ms. Huttons diaries were inadmissible. Division Three of the Court of Appeal for the Fourth Appellate District affirmed that order. (Law Offices of Herbert Hafif v. Soukup (Apr. 27, 2000, G020977) [nonpub. opn.].) The Court of Appeal opinion held that the claims of Mr. Hafif and his firm against Ms. Hutton in the Killingsworth action were predicated upon allegations that she made complaints to the State Bar and newspaper articles repeating the allegations. The Court of Appeal held, Huttons allegedly actionable conduct consisted of her making complaints to the State Bar. Such statements clearly fall within the action protected by [section 425.16]. (Id., [at p. 5].) The Court of Appeal further stated: The only evidence potentially showing merit in Hafifs claims came from Huttons diaries, which were prepared for transmission to her lawyer. The trial court properly concluded they were inadmissible. (Id., [at p. 6].)
As noted above, in support of their claims against Ms. Hutton, Mr. Hafif and his firm had relied on the diaries she kept. They argued the diaries established they had probable cause to sue for conspiracy. As noted, in the Killingsworth action, the trial judges viewed the diaries in different ways. Retired Judge Goldstein relied on the diaries in denying Ms. Huttons summary judgment motion. But in granting Ms. Huttons special motion to strike in the Killingsworth action, Retired Judge Thomas ruled the diaries were inadmissible. The Supreme Court addressed the issue in Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295 and footnote 22. The Supreme Court held in part: Finally, defendants repeatedly argue that Terrie Huttons diaries demonstrate that they had probable cause to proceed against [Peggy] Soukup[, a codefendant,] in the [Killingsworth] action. Preliminarily, defendants did not obtain these diaries until after they had filed the underlying action and, therefore, the diaries could not have provided them with probable cause for filing the action and naming [Ms.] Soukup as a defendant in it. (Id. at p. 295, italics added.) In a footnote the Supreme Court observed, Moreover, as the Court of Appeal concluded in the appeal affirming the dismissal of the underlying action as a SLAPP against [Ms.] Soukup and [Ms.] Hutton, those diaries were properly held to be inadmissible. (Id. at p. 295, fn. 22, orig. italics.)
3. The Third Action
On November 30, 2000, Ms. Hutton filed a lawsuit against Mr. Hafif and his firm for maliciously prosecuting the Killingsworth action against her. On July 20, 2001, Mr. Hafif and his firm filed a special motion to strike the malicious prosecution action. Mr. Hafif and his firm argued: they had probable cause to file the Killingsworth action because the totality of facts demonstrated Ms. Hutton was a participant in a conspiracy to file a malicious and defamatory action against them; Retired Judge Goldstein relied on Ms. Huttons diaries to deny a summary judgment motion directed at the second amended complaint in the Killingsworth action; they had probable cause to believe the diaries were admissible; and the Court of Appeal for the Fourth Appellate District found the diaries provided potential, albeit inadmissible, evidence of a conspiracy. On June 27, 2002, Retired Judge Alban I. Niles denied the special motion to strike on the ground Mr. Hafif and his firm did not have probable cause to file the Killingsworth action. Mr. Hafif and his firm appealed from Retired Judge Niless order denying the special motion to strike.
On May 11, 2004, we reversed Retired Judge Niless order denying the special motion to strike. We concluded Retired Judge Goldsteins denial of Ms. Huttons summary judgment motion in the Killingsworth action established probable cause under Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 816-826. We remanded the case and directed Retired Judge Niles to enter a new order granting the special motion to strike. (Hutton v. Hafif (May 11, 2004, B162572 [nonpub. opn.].) We acknowledged that other courts had found the diaries were inadmissible, but concluded those rulings did not undermine the effect of Retired Judge Goldsteins summary judgment order in terms of the probable cause analysis. (Id., [at pp. 9-10].) The Supreme Court denied review on February 16, 2005. On May 26, 2005, Judge Paul Gutman entered an order granting the special motion to strike and a judgment of dismissal. On July 13, 2005, Judge Gutman entered a separate judgment awarding section 425.16, subdivision (c) attorney fees to Mr. Hafif and his firm.
Ms. Hutton appealed from the attorney fee award and a post judgment order. On May 3, 2007, we reversed the order granting attorney fees imposed by Judge Gutman. (Hutton v. Hafif (May 3, 2007, B186084) __ Cal.App.4th __,__ [2007 WL 1289563].) We also held that the special motion to strike of Mr. Hafif and his firm was properly granted by Judge Gutman notwithstanding the 2005 amendments to section 425.16, subdivision (b)(3) and the adoption of section 425.18. (Id. [at pp. __-__].)
B. The Present Intentional Severe Emotional Distress Infliction Lawsuit
On April 26, 2001, Mr. Hutton filed the present intentional severe emotional distress infliction lawsuit against Mr. Hafif and his firm arising out of the Killingsworth action where Ms. Hutton was sued. Mr. Hutton seeks to recover for the emotional distress he experienced when the Hafifs sued Ms. Hutton in the Killingsworth action. The Hafifs filed a special motion to strike. In a confusing fashion, the Hafifs special motion to strike addressed causes of action for malicious prosecution and abuse of process. The sole cause of action in Mr. Huttons complaint was for intentional severe emotional distress infliction. The Hafifs argued: there was probable cause to bring the Killingsworth action against Ms. Hutton; Mr. Huttons causes of action for abuse of process and malicious prosecution arose out of the Hafifs prior litigation activity; Mr. Hutton could not establish a probability of prevailing because the malicious prosecution claim was not plead with the requisite specificity; Ms. Hutton was collaterally estopped from relitigating the probable cause issue, therefore Mr. Huttons derivative claim failed; the allegedly outrageous conduct was directed at Ms. Hutton, not at Mr. Hutton himself and did not occur in his presence; it must appear that the Hafifs conduct was unprivileged, i.e., not covered by Civil Code section 47 nor performed on advice of counsel; and the Hafifs relied on advice of counsel in bringing the action against Ms. Hutton. In his opposition, Mr. Hutton asserted: section 425.16 was inapplicable because the underlying action, which was maliciously prosecuted and dismissed in response to a special motion to strike under section 425.16, was not a valid exercise of petition rights; the Hafifs failed to produce any evidence in support of the underlying action; he was not collaterally estopped from litigating probable cause; and he was not required to rebut the Hafifs affirmative defenses. In their reply, the Hafifs argued the burden shifted to Mr. Hutton to establish a probability of prevailing, but Mr. Hutton failed to produce any evidence of causation or damages.
Retired Judge OBrien denied the Hafifs special motion to strike. Retired Judge OBrien concluded: As the Court of Appeal has previously ruled that the underlying case was a SLAPP suit, by definition it was not of the type that the Legislature sought to protect under [section] 425.16 as a valid exercise of free speech. Therefore, [Mr. Huttons] retaliation in filing this case cannot be said to have a chilling effect on the [the Hafifs] conduct in having filed the underlying case. (Orig. underscore.) The record does not reflect any ruling on the parties evidentiary objections.
On appeal, we held the Hafifs challenged conduct involved their role either as counsel or parties in the Killingsworth action; hence, Mr. Huttons severe emotional distress claims arose from the Hafifs petition related conduct in the Killingsworth lawsuit; and the burden shifted to Mr. Hutton to show his case had minimal merit. (Hutton v. Hafif (June 30, 2004, B154184) [nonpub. opn., mod. July 8, 2004] [at p. 5].) We further held Mr. Hutton, who did not file a declaration, failed to present minimal evidence that: he in fact suffered severe emotional distress; any severe emotional distress was legally caused by the Hafifs conduct; and he suffered any damage. Therefore, we concluded, the Hafifs special motion to strike should have been granted. (Hutton v. Hafif, supra, [at p. 8].)
Mr. Hutton successfully sought review in the Supreme Court. However, our Supreme Court subsequently transferred the matter to us with directions to vacate our opinion and reconsider in light of Flatley. The parties filed supplemental briefs pursuant to California Rules of Court, former rule 13(b), see now rule 8.200(b) effective January 1, 2007. We disregard the Hafifs purported incorporation by reference of a brief and a letter brief filed in the Supreme Court. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 294, fn. 20.)
III. DISCUSSION
A. Standard of Review and Burdens of Proof
When a special motion to strike is filed, the trial court must consider two components. First, the moving party has the initial burden of establishing a prima facie case that the plaintiffs cause of action arose out of the defendants actions in furtherance of the rights of petition or free speech. ( 425.16, subd. (b)(1); Flatley, supra, 39 Cal.4th at p. 314; Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) Second, once the defendant establishes the challenged cause of action arises out of the exercise of petition or free expression rights, the burden shifts to the plaintiff. The plaintiff must then establish a probability that he or she will prevail on the merits. ( 425.16, subd. (b)(1); Flatley, supra, 39 Cal.4th at p. 314; Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) The Supreme Court has defined the probability of prevailing burden as follows, [T]he plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of the facts to sustain a favorable judgment if the evidence submitted by plaintiff is credited. (Wilson v. Parker, Covert & Chidester[, supra,] 28 Cal.4th [at p.] 821, quoting Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1123.) In reviewing an order on a special motion to strike, we use our independent judgment to determine whether the defendant was engaged in a protected activity and the plaintiff has sustained his or her burden of probability of prevailing on the challenged cause of action. (Flatley, supra, 39 Cal.4th at pp. 325-326; Rusheen v. Cohen, supra, 37 Cal.4th at p. 1055.)
B. Illegal as a Matter of Law
As noted above, in Flatley, the Supreme Court held, [N]ot all speech or petition activity is constitutionally protected, [therefore] not all speech or petition activity is protected by section 425.16; moreover, if the asserted protected speech or petition activity is illegal as a matter of law, the defendant may not use section 425.16 to strike the plaintiffs action. (Flatley, supra, 39 Cal.4th at p. 313.) Flatley involved a civil extortion and intentional emotional distress infliction case brought by a well-known entertainer against an Illinois attorney. (Flatley, supra, 39 Cal.4th at p. 305.) The Illinois attorneys client had accused the plaintiff of rape. The Supreme Court held: the evidence conclusively established the Illinois attorneys settlement demands constituted criminal extortion as a matter of law; criminal extortion is not constitutionally protected; and therefore the Illinois attorneys underlying conduct was such that the burden of proof never shifted to the plaintiff to make a prima facie showing of the merits of the cause of action in the complaint. (Id. at pp. 325-332.) In other words, the Illinois attorney did not meet his threshold burdento show the challenged causes of action arose from protected activity. (Ibid.; Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1365-1368, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) The Supreme Court held: [W]here a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiffs action arises from activity by the defendant in furtherance of the defendants exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using [section 425.16] to strike the plaintiffs action. In reaching this conclusion, we emphasize that the question of whether the defendants underlying conduct was illegal as a matter of law is preliminary, and unrelated to the second prong question of whether the plaintiff has demonstrated a probability of prevailing, and the showing required to establish conduct illegal as a matter of laweither through defendants concession or by uncontroverted and conclusive evidenceis not the same showing as the plaintiffs second prong showing of probability of prevailing. (Flatley, supra, 39 Cal.4th at p. 320.)
In Flatley, our Supreme Court stressed the point that assertedly protected activity can be found to be illegal as a matter of law in a narrow circumstance onlywhen there is no factual dispute as to illegality. (Flatley, supra, 39 Cal.4th at p. 315.) Our Supreme Court explained: Paul [for Council v. Hanyecz, supra, 85 Cal.App.4th 1356, a case often cited for the proposition that not all lawsuits fall with the protection of section 425.16,] emphasized the narrow circumstance in which a defendants assertedly protected activity could be found to be illegal as a matter of law and therefore not within the purview of section 425.16. This case . . . involves a factual context in which defendants have effectively conceded the illegal nature of their election campaign finance activities for which they claim constitutional protection. Thus, there was no dispute on that point and we have concluded, as a matter of law, that such activities are not a valid exercise of constitutional rights as contemplated by section 425.16. However, had there been a factual dispute as to the legality of defendants actions, then we could not so easily have disposed of defendants motion. (Paul [v. Hanyecz], supra, 85 Cal.App.4th at p. 1367.) The court explained that, if the plaintiff contested the validity of the defendants exercise of protected rights and unlike the case here, cannot demonstrate as a matter of law that the defendants acts do not fall under section 425.16s protection, then the claimed illegitimacy of the defendants acts is an issue which the plaintiff must raise and support in the context of the discharge of the plaintiffs burden to provide a prima facie showing of the merits of the plaintiffs case. (Ibid.) (Flatley, supra, 39 Cal.4th at p. 315.)
Here, the Hafifs do not concede that their assertedly protected conductbringing the Killingsworth action against Ms. Huttonwas illegal as a matter of law. Therefore, we must consider if Mr. Hutton proved that the evidence conclusively established illegality as a matter of law. As discussed above, in Flatley, supra, 39 Cal.4th at page 320, our Supreme Court held, [W]here a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiffs action arises from activity by the defendant in furtherance of the defendants exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using [section 425.16] to strike the plaintiffs action.
C. Application to the Present Case
1. The Hafifs threshold showing
We turn first to the question whether the Hafifs have shown the challenged cause of action arises from protected activity. ( 425.16, subd. (b)(1); Rusheen v. Cohen, supra, 37 Cal.4th at p. 1055.) As discussed above, Mr. Hutton alleged a single intentional severe emotional distress infliction cause of action. Mr. Hutton sought to recover for the emotional distress he experienced when the Hafifs unjustifiably sued his wife in the Killingsworth action. The challenged conductprosecuting the Killingsworth action against Ms. Huttoninvolved the Hafifs role either as counsel or parties in the Killingsworth action. Hence, Mr. Huttons intentional severe emotional distress infliction claim arises from the Hafifs petition related conduct in the underlying lawsuit. (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at pp. 734-735; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1116; Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 152-153.)
2. Mr. Huttons Illegal as a Matter of Law Showing
Mr. Hutton asserts the Killingsworth action was illegal as a matter of law because its filing and maintenance violated Business and Professions Code section 6094, subdivision (a), which forbids lawsuits predicated on communications to the State Bar. Business and Professions Code section 6094, subdivision (a) states in part, Communications to the disciplinary agency relating to lawyer misconduct or disability or competence, or any communication related to an investigation or proceeding and testimony given in the proceeding are privileged, and no lawsuit predicated thereon may be instituted against any person. . . . (Italics added; see Jacques Interiors v. Petrak (1987) 188 Cal.App.3d 1363, 1372; Stanwyck v. Horne (1983) 146 Cal.App.3d 450, 459-462.) Mr. Hutton has failed to conclusively prove by citation to the evidence the Killingsworth action was illegal as a matter of law because it violated Business and Professions Code section 6094, subdivision (a). The complaint in the Killingsworth action alleged: Ms. Hutton, as part of a conspiracy to harm Mr. Hafif and his firm, filed an unjustified civil action against them; one member of the conspiracy wrote a letter to Congress; with other former clients, Ms. Hutton caused a newspaper article to be published in which Mr. Hafif and his firm were accused of overcharging for costs; complaints were made to labor commissions and pension boards; Ms. Hutton caused to be publicly republished the content of communications to the State Bar; and Ms. Hutton and her coconspirators had sought, by presenting a unified front, to pressure Mr. Hafif and his firm to reduce the fees and costs owed for legal services. Among other things, the second amended complaint alleged: Ms. Hutton maliciously pursued the first lawsuit between the parties where she was represented by Mr. Sales and the demurrer dismissal and sanctions order were set aside by Division Two of this appellate district; Ms. Hutton and her coconspirators caused an article to appear in the Orange County Register; Ms. Hutton made complaints to the Federal False Claims Act Information Center, which was a source of referrals for Mr. Hafif and his firm; and Ms. Hutton, along with others, caused a newspaper article to state that Mr. Hafif and his firm in litigation would fight, fight, fight but then settle, settle, settle when confronted with risk or the incurring of substantial costs. The foregoing allegations were public statements and not communications to the State Bar within the scope of Business and Professions Code section 6094, subdivision (a).
Further, as our Fourth Appellate District colleagues explained in the Killingsworth action appeal after the special motion to strike was granted, an Orange County newspaper published an article repeating the allegations in Ms. Huttons State Bar complaint. The Court of Appeal explained: The basis for the complaints allegations against [Ms. Hutton] was the newspaper articles. The articles accurately reflected that complaints had been made to the State Bar . . . and the contents of those complaints. (Law Offices of Herbert Hafif v. Soukup, supra, [at p. 6].) Business and Professions Code section 6094, subdivision (a), bars lawsuits predicated on [c]ommunications to the disciplinary agency relating to [the] misconduct or disability or competence . . . of a lawyer. Mr. Hafif and his firm sued Ms. Hutton for allegedly conspiring to file a baseless lawsuit and publicizing false accusations about them. That she communicated her allegations to the State Bar was not the sole basis for the lawsuit. The filing and maintenance of the Killingsworth action against Ms. Hutton cannot be characterized as illegal as a matter of law because she was not sued solely for complaining to the State Bar. As a result, the Hafifs conduct was not illegal as a matter of law as that term is used in Flatley.
3. Mr. Huttons probability of prevailing
The Hafifs met their threshold burden and Mr. Hutton failed to establish illegality as a matter of law. Therefore, the section 425.16, subdivision (b)(1) minimal merit burden shifted to him. ( 425.16, subd. (b)(1); Navellier v. Sletten, supra, 29 Cal.4th at p. 93; Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 63.) We reached a similar conclusion in construing section 425.18, subdivision (h) in Ms. Huttons case. (Hutton v. Hafif, supra, __ Cal.App.4th at pp. ___ - ___.) In his supplemental brief, Mr. Hutton contends the Hafifs forfeited the arguments raised here in that they never argued insufficient severe emotional distress evidence or the litigation privilege in the trial court. Whether defendants raised those issues in the trial court, Mr. Hutton was required to demonstrate a probability of prevailing on his emotional distress cause of action. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 291; Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) More to the point, the Hafifs expressly argued that Mr. Hutton had the burden of producing admissible evidence sufficient to raise a triable issue of fact on each and every element of his emotional distress cause of action.
Mr. Hutton failed to sustain his burden of demonstrating a prima facie showing of facts sufficient to sustain a favorable judgment. The Supreme Court has held: The elements of a cause of action for intentional infliction of emotional distress are (i) outrageous conduct by defendant, (ii) an intention by defendant to cause, or reckless disregard of the probability of causing, emotional distress, (iii) severe emotional distress, and (iv) an actual and proximate causal link between the tortious conduct and the emotional distress. (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 155, fn. 7.) (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300; accord, Conley v. Roman Catholic Archbishop of San Francisco (2000) 85 Cal.App.4th 1126, 1133.) With respect to the outrageous conduct element, the Supreme Court has held, Conduct is extreme and outrageous when it exceeds all bounds [of decency] usually tolerated by a decent society, [and is] of a nature which is especially calculated to cause, and does cause, mental distress. . . . (Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at p. 155, fn. 7.) Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Rest.2d Torts, 46, com. d.) . . . Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiffs interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. . . . (Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at p. 155, fn. 7.) (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1122, superceded on a different point as stated in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19.) Outrageous conduct has been held to include: sexual assault of a minor (DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1024, fn. 6); sexual harassment in the workplace (Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590, 618); and an arrest by a security guard who knew the plaintiff had not committed any offense. (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593-594.) Here, Mr. Hutton contends the Killingsworth lawsuit was extreme and outrageous conduct because the Hafifs sued a former client for filing a State Bar complaint. We find as a matter of law that the Hafifs prosecution of the underlying lawsuit was not so extreme as to exceed all bounds of that usually tolerated in a civilized community. As discussed above, the Killingsworth action was predicated on conduct other than Ms. Huttons State Bar complaint. Further, Retired Judge Goldstein of the Orange County Superior Court denied Ms. Huttons summary judgment motion in the Killingsworth action. In Hutton v. Hafif, supra, ___ Cal.App.4th at pages ___- ___, we explained that Mr. Hafif and his firm filed the Killingsworth action with probable cause. The filing of an unmeritorious lawsuit which was instituted with probable cause does not exceed all bounds of conduct usually tolerated in a civilized society. Thus, plaintiff failed to demonstrate his severe emotional distress infliction claim has the requisite minimal merit.
IV. DISPOSITION
The order denying the special motion to strike is reversed. Upon issuance of the remittitur, an order is to issue granting the special motion to strike. Defendants, the Law Offices of Herbert Hafif, Herbert Hafif, Cynthia D. Hafif, and Gregory K. Hafif, are to recover their costs on appeal and attorney fees from plaintiff, Terry Hutton. All attorney fee requests are to be made pursuant to California Rules of Court, rule 3.1702(c).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
ARMSTRONG, J. MOSK, J.
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[1] All further statutory references are to the Code of Civil Procedure except where otherwise noted.
