Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG08374245
Kline, P.J.
INTRODUCTION
In these consolidated appeals, Eric Soderling seeks to overturn the trial court’s partial grant of an anti-SLAPP motion (Code Civ. Proc., § 425.16) in favor of respondents and to overturn or reduce the award of attorney fees to respondents.
All statutory references are to the Code of Civil Procedure, unless otherwise indicated.
In 2006, the Medical Board of California (Medical Board) revoked appellant’s license to practice medicine. After that revocation decision became final, appellant filed the instant action against the Office of the Attorney General; Deputy Attorneys General Jane Zack Simon and Beth Faber Jacobs, individually and in their official capacities; and Medical Board senior investigators Teri Bennett and Charles McCort, individually and in their official capacities. (The Medical Board is not a party to this action.) The crux of appellant’s claim was that respondents violated court orders that, pursuant to Penal Code section 851.8, respondents were to consider appellant’s previous 1987 arrest and conviction (sometimes referred to herein as the “1987 incident”) as having not occurred, were to seal and destroy their records of the incident, and were to advise the Medical Board to destroy all references to that incident in its records. Appellant further claimed that this violation of both the statute and court orders influenced the initiation and pursuit of the medical license revocation action against him, denying him a fair hearing in that proceeding. Appellant’s “Verified First Amended Petition for Writ of Mandate; Complaint” (writ petition/complaint) sought an order requiring respondents to comply with the previous court orders, enjoining further violations, and declaring that respondents had violated his constitutional rights. He also sought damages and attorney fees. Respondents countered with an anti-SLAPP motion under section 425.16, seeking dismissal of all causes of action. The trial court denied appellant’s request for relief from the stay of discovery pending determination of the motion. (§ 425.16, subd. (g).) The trial court partially granted the special motion to strike, striking eight of the writ petition/complaint’s 10 causes of action. The court awarded respondents attorney fees. (§ 425.16, subd. (c).) Appellant timely appealed the order granting in part the anti-SLAPP motion (A124196), and the order awarding attorney fees (A124931).
An order granting or denying an anti-SLAPP motion is appealable pursuant to sections 425.16 subdivision (i), and 904.1, subdivision (a)(13).
Appellant contends: (1) respondents’ anti-SLAPP motion was erroneously granted as respondents’ asserted protected speech was illegal, and therefore unprotected under the anti-SLAPP statute; (2) assuming the speech was not illegal, appellant still met his burden of showing a prima facie case of probability of success on the merits; (3) the court erroneously denied his request to conduct discovery during the pendency of the anti-SLAPP motion; (4) the court erroneously denied appellant’s request for a continuance of the anti-SLAPP motion to allow him to conduct and complete discovery in his separate action against the Medical Board in Sacramento; and (5) the court abused its discretion in awarding attorney fees for time spent on the motion by respondent Deputy Attorneys General Jacobs and Simons.
FACTS AND PROCEDURAL BACKGROUND
A. Penal Code Section 851.8 and Related Orange County Superior Court Orders
In 1987, appellant was arrested and convicted of drug-related crimes. Appellant entered into a plea bargain and was placed on probation for five years. Upon successfully completing that term in 1992, the plea was set aside and the matter was dismissed under Penal Code section 1203.4. In June 1997, appellant moved under Penal Code section 851.8 to withdraw his earlier guilty plea, to have the accusation dismissed, and to have his records sealed. On June 6, 1997, at appellant’s request and with the district attorney’s concurrence, Orange County Superior Court Judge David O. Carter issued an order under Penal Code section 851.8, directed to the Attorney General and others, ordering “that all records of this arrest be sealed forthwith and Five (5) years from the date of arrest, be destroyed.” The order further stated that appellant and all others must “consider the sealed incident as having not occurred.”
On February 20, 1998, apparently agreeing with the Attorney General’s suggestion that appellant did not qualify to have his records sealed under Penal Code section 851.8, Orange County Superior Court Judge Kazuharu Makino vacated the court’s prior sealing order. Thereafter, appellant applied to the Medical Board for issuance of a license to practice medicine. As he could not rely upon the vacated sealing order, appellant disclosed the 1987 incident on his medical license application. The Medical Board issued appellant an unrestricted medical license in 1999, and he practiced medicine from that time until 2006.
On June 28, 2001, the Fourth District Court of Appeal, Division Three, granted appellant’s petition for a peremptory writ of mandate and ordered the superior court to set aside its February 20, 1998 order vacating the June 6, 1997 sealing order, as an order not subject to collateral attack. (Soderling v. Superior Court (June 28, 2001, G027337) [nonpub. opn.].) On remand, Judge Makino entered two new orders on October 5, 2001. The first reinstated the 1997 sealing order, ordered appellant’s guilty plea withdrawn, adjudged him factually innocent, dismissed the prosecution, and directed that “[p]ursuant to [Penal Code] section 851.8, the Department of Justice is ordered to destroy their records of defendant’s arrest and/or conviction” pertaining to the 1987 incident. The second 2001 order, directed to the “Attorney General, State of California Department of Justice, Bureau of Criminal Identification and Information, ” ordered the Department of Justice “pursuant to the provisions of Penal Code section 851.8, subdivisions (b) and (c)” to “destroy all records of defendant Eric M. Soderling’s June, 1987 arrest and/or conviction” and to “request the destruction of any records of the arrest which they have given to any local, state, or federal agency, person or entity.” Appellant served the 2001 orders on respondent Office of the Attorney General. On December 17, 2001, appellant’s counsel sent a letter to the Medical Board, requesting compliance with the court orders.
The second 2001 Order directed to the Attorney General stated:
On April 9, 2002, an analyst with the Medical Board’s licensing program responded that the Medical Board had consulted with its legal counsel and “we were advised by counsel that we do not have the authority to expunge and/or destroy records from Dr. Soderling’s file as you requested. Although we can’t grant your request, we will add the information you provided to Dr. Soderling’s file. The documentation provided verifies that on October 5, 2001, Dr. Soderling was adjudged factually innocent and the prosecution was dismissed.”
Appellant “presumes” counsel furnishing this advice to have been a deputy attorney general.
B. Medical Board License Revocation Proceedings
Two months later, appellant was the subject of a patient complaint alleging unprofessional conduct. The complaint was referred to the Medical Board.
On July 15, 2002, the Medical Board’s Office of Investigative Services began an investigation of the patient complaint. Before 2002 and continuing until January 1, 2006, investigations by the Medical Board were conducted independently by the Medical Board. During the time of the Medical Board investigation of complaints relating to appellant, Medical Board investigators were not employed by the Office of the Attorney General and were never under the direction, supervision or control of the Attorney General. (Deputy attorneys general were, however, assigned to represent the Medical Board in administrative disciplinary proceedings.)
In January 2006, the Office of the Attorney General was given joint responsibility for investigation of complaints against medical doctors by the Medical Practice Act. (Bus. & Prof. Code, § 2006.) Pursuant thereto, “as of January 1, 2006, each complaint that is referred to a district office of the board for investigation shall be simultaneously and jointly assigned to an investigator and to the deputy attorney general in the Health Quality Enforcement Section responsible for prosecuting the case if the investigation results in the filing of an accusation. The joint assignment of the investigator and the deputy attorney general shall exist for the duration of the disciplinary matter. During the assignment, the investigator so assigned shall, under the direction but not the supervision of the deputy attorney general, be responsible for obtaining the evidence required to permit the Attorney General to advise the board on legal matters such as whether the board should file a formal accusation, dismiss the complaint for a lack of evidence required to meet the applicable burden of proof, or take other appropriate legal action.” (Gov. Code, § 12529.6, subd. (b).)
On February 5, 2003, appellant was interviewed by respondent Medical Board investigator Bennett. The 1987 incident was not discussed at that meeting. However, appellant admitted to a 1995 arrest for solicitation of prostitution. He also claimed that the patient who had lodged the complaint against him told him she would prostitute herself for money. Bennett obtained a copy of appellant’s licensing file, which contained documentation of the 1987 incident that had been provided by appellant as part of his license application and also contained a copy of the 2001 Orange County Superior Court orders to seal and destroy records of the 1987 incident. Respondent Bennett provided copies of the licensing file containing the description of the 1987 incident to potential expert witness consultants to review the claims against appellant. At the conclusion of the investigation, the matter was referred to the Office of the Attorney General.
Respondent Simon was assigned to represent the Medical Board in the administrative proceeding against appellant. On November 19, 2003, respondents Simon and the Office of the Attorney General drafted a “Petition for Order Compelling Psychiatric Examination (Bus. & Prof. Code, § 820)” on behalf of the Medical Board. The petition referred to the 1987 incident, stating that appellant had “disclosed his past substance abuse history, which included a conviction in 1987 for conspiracy to sell controlled substances. Dr. Soderling had significant history of drug abuse, but he participated in a residential treatment program in 1987 and has a 15 year period of sobriety.” The petition did not mention that appellant subsequently had been adjudicated factually innocent. The petition contained the observations of Laura Duskin, M.D., a board certified psychiatrist supporting the psychiatric examination. This psychiatrist had reviewed the investigative report and the physician conference and observed that the conduct exhibited by appellant could indicate, among other things, relapse into drug or alcohol abuse. Duskin opined that the evidence provided “just cause to compel Dr. Soderling to undergo a psychiatric and substance abuse disorder evaluation....” The petition was granted and appellant was referred to Dr. Bruce Victor, who conducted 14 hours of psychiatric examination. On December 17, 2003, in advance of the psychiatric examination, appellant’s counsel John Fleer sent a letter to investigator Bennett protesting the improper use of the 1987 incident and its disclosure to potential expert witnesses to obtain the petition. In mid-March 2004, Fleer again wrote to Bennett, refusing Bennett’s request to meet to discuss appellant’s care and treatment of a second patient, and again objected to the reference in the petition for a psychiatric evaluation to records that had been ordered sealed and destroyed.
On April 30, 2004, the Medical Board, represented by Simon, filed an accusation against appellant. Simon concluded the 1987 incident was not relevant to the charges in the accusation in the disciplinary proceeding and in order to resolve the matter before the administrative hearing, Simon and Fleer agreed that there would be no reference to the 1987 incident and that all references contained in any of the documents or evidence to be introduced or considered in the proceeding would be redacted. Simon personally redacted all references to the arrest and conviction from all evidence the Medical Board introduced at the hearing. She did not refer to it in any briefs or other papers filed in the proceedings at the Office of Administrative Hearings (OAH). She did not refer to it in questions, testimony, or argument and did not solicit or obtain testimony concerning it from any witness. Simon discontinued the services of the experts previously retained by the Medical Board during its investigation, and retained a new expert who was never provided information regarding the 1987 incident. She removed and/or redacted all references to it from all files related to the administrative action and requested the Medical Board to remove and redact any record of the 1987 incident from its licensing and investigation files, as well as from its central file.
Appellant contends that Simon’s actions were taken in response to a February 25, 2005 contempt of court motion appellant filed in the Orange County Superior Court. After negotiations between Simon as counsel for the Medical Board and attorney Charles Bond representing appellant in the contempt motion, appellant and attorney Fleer understood that appellant would not prosecute the contempt of court matter and that the Attorney General and the Medical Board would remove references to the 1987 incident and not use any of the tainted expert testimony, opinions, findings or reports against appellant in the pending Medical Board disciplinary proceeding. In furtherance of the stipulation between the parties, Simon and Jacobs provided declarations under penalty of perjury to appellant’s counsel, describing the steps each had taken comply with the previous Carter and Makino orders.
In a declaration filed June 20, 2008, respondent Jacobs stated that the contempt matter remained unresolved and that the Medical Board and the Office of the Attorney General had acted unilaterally in taking steps to redact the Medical Board files.
In April 2005, both the Medical Board and appellant, through his attorney, had submitted case status conference statements and settlement conference statements to the OAH. Appellant’s statements both contained references to appellant’s 1987 arrest and conviction; however, statements submitted by Simon for the Medical Board contained no such references. The only references to appellant’s 1987 arrest and conviction contained in the records of the OAH are in documents submitted by appellant through his attorney.
Sometime around September 28, 2005, Jacobs proposed that the redactions be referenced, “Redaction pursuant to Penal Code section 851.8.” Fleer responded in a letter to Simon, objecting to the proposed reference as not in keeping with the statute.
The administrative hearing was heard by Administrative Law Judge Ruth Astle in November and December 2005. The record of that hearing contains no reference to the 1987 arrest and conviction. Astle made proposed findings of fact and conclusions of law and recommended revocation of appellant’s medical license. On April 13, 2006, the Medical Board adopted all of Astle’s recommendations. Appellant filed a petition for administrative writ in the superior court and, upon denial of the writ by that court, filed a petition for writ of mandate here seeking review of the Medical Board decision revoking his license. On September 21, 2006, Division Three of this Court denied appellant’s writ petition. (Soderling v. Superior Court (Sept. 21, 2006, A115226).)
C. Appellant Sues Respondents
On or about September 21, 2007, appellant submitted a claims form to the California Victims Compensation and Government Claims Board (Claims Board), alleging that he had discovered for the first time on June 1, 2007, that respondents used the 1987 incident during the Medical Board proceedings. He asserted that when he reviewed the hearing file he found that a copy of his attorney’s “Confidential Settlement Statement” was included in that file and not in the “sealed” file, and that a statement regarding the psychiatric report of Dr. Victor was presented in the Medical Board’s nonconfidential settlement statement. The Claims Board rejected the claim as untimely.
The settlement conference statement filed by Simon on behalf of the Medical Board stated, “According to Dr. Victor, Dr. Soderling’s conduct was likely the result of his mental status, and he would benefit from psychotherapy.”
On April 28, 2008, appellant filed the underlying writ petition/complaint with the Alameda County Superior Court. This pleading contained 10 causes of action alleging respondents violated appellant’s statutory and constitutional rights when referencing the 1987 incident in the investigation and prosecution of the administrative disciplinary action. Appellant moved to seal the action. Respondents opposed sealing, contending the only references to the 1987 incident in the Medical Board’s records at that time were documents submitted by appellant through his attorney. The trial court denied the motion to seal.
The Medical Board was a named, but unserved, defendant in the original complaint, but was dropped from the action by predecessor counsel. When appellant’s current counsel sought to join the Medical Board in the proceedings, both the Medical Board and the Attorney General objected, citing Business and Professions Code section 2019, which limits the venue of suits against the Medical Board to certain counties that do not include Alameda County.
(1) Respondents’ anti-SLAPP motion
On June 20, 2008, respondents filed the anti-SLAPP motion (§ 425.16) that is the subject of this appeal. On July 14, 2008, appellant moved to conduct discovery in connection with the anti-SLAPP motion, pursuant to section 425.16, subdivision (g). Appellant sought extensive discovery and informed the court that he expected “to uncover admissible evidence of a pattern of illegal misconduct that commenced before any of the purported privileges asserted in the Motion to Strike could have attached.” He asserted that such evidence could support his opposition to the motion to strike on the basis that respondents’ actions were illegal and, therefore, excluded from the protections of the anti-SLAPP statute. The court granted appellant’s ex-parte application to advance the discovery motion hearing from September 17, 2008 to August 5, 2008, and the court continued the hearing on the motion to strike to November 18, 2008.
Respondents opposed the motion to conduct discovery, arguing there was no good cause for discovery as appellant had failed to state what evidence he expected to uncover or how evidence on the described topics or from the named deponents related to any of his causes of action or to the affirmative defenses raised by respondents in the anti-SLAPP motion. Respondents also opposed discovery on the ground that the Office of the Attorney General had no obligation to request destruction of records provided by appellant to the Medical Board. On August 5, 2008, following the hearing, the court denied appellant’s motion for leave to conduct discovery pursuant to section 425.16, subdivision (g), finding that appellant had not shown good cause for discovery. The court’s order was explicitly made without prejudice to appellant’s attempt “in opposition to the motion to strike, to show that a continuance of the motion to strike [was] justified to permit discovery.”
On August 26, 2008, appellant filed a verified petition for writ of mandamus and complaint for declaratory and injunctive relief against the Medical Board in Sacramento County Superior Court seeking, among other things, the sealing and destruction of Medical Board records referencing the 1987 incident. The Medical Board demurred to the complaint/petition for mandamus in the Sacramento action and received a protective order staying discovery until determination of the demurrer. The Sacramento County Superior Court overruled the demurrer on November 17, 2008, and sanctioned the Medical Board and its counsel for bringing the motion for a protective order without substantial justification.
On November 4, 2008, appellant filed his opposition to the motion to strike in this action, and also requested therein a continuance to allow him to conduct discovery in the Sacramento action.
(2) Trial court order granting anti-SLAPP motion in part
Respondents’ anti-SLAPP motion was heard on November 18, 2008. On January 2, 2009, the court filed its amended order granting respondents’ special motion to strike as to all but the first and second causes of action. In granting the anti-SLAPP motion as to the third through tenth causes of action, the court found that these causes of action arose from acts in furtherance of respondents’ right of petition or free speech in connection with a public issue and arising from respondents’ oversight and investigation of the patient accusation and prosecution of the administrative license revocation proceeding. In rejecting appellant’s claim that respondents’ speech and petition activity in connection with the license revocation proceeding was illegal as a matter of law, and so subject to an exception to the anti-SLAPP statute, the court found that neither the court orders nor Penal Code section 831.8 required respondents to ensure that no records referring to the 1987 incident were in the files of either the Medical Board or of the administrative law judge. The court added that “there is no evidence that the Office of the Attorney General provided records of the arrest to the Medical Board.”
The first cause of action alleged respondents violated Penal Code section 851.8 by refusing to destroy records of the 1987 incident after appellant had been adjudged factually innocent and by marking those documents as redacted pursuant to Penal Code section 851.8. The second cause of action sought a writ of mandate ordering respondents to destroy their records of the 1987 arrest and to treat the arrest as not having occurred.
As to the second step in evaluating an anti-SLAPP motion, the court found appellant had not shown a probability of prevailing, as appellant had failed to make out a prima facie case that respondents acted illegally in failing to ensure the records did not contain any references to the 1987 incident, or that respondents had provided records of the arrest to the Medical Board. The court found that appellant was the source of references to the arrest and conviction records held by the OAH through his case status conference statement and confidential settlement conference statement. The court further concluded that the litigation privilege (Civ. Code, § 47, subd. (b)) barred the allegations relating to the filing of court papers referencing the 1987 incident and/or the psychiatric exam in the administrative proceedings; that res judicata barred any challenge to the revocation of appellant’s medical license; that respondents were immune under Government Code section 821.6 for their conduct during the investigation and prosecution of the administrative charges against appellant; that a cause of action for damages could not be stated against the Office of the Attorney General under 42 U.S.C. section 1983, because it is not a “person” within the meaning of that statute; and that a cause of action for damages could not be stated against any respondent under Penal Code section 851.8. The court further found appellant’s claim for damages under state law to be time-barred because he did not submit a government tort claim within six months of the accrual of his damages claim. The court rejected appellant’s claim of late discovery, finding he should have discovered these facts in connection with his original petition for administrative writ filed with the superior court in June 2006 and his petition for writ of mandate filed with the appellate court in September 2006. The court further found appellant did raise respondents’ purported violation of Penal Code section 851.8 in the Court of Appeal in 2006. The court rejected appellant’s claims of violation of his constitutional due process rights under the United States and California Constitutions, finding that the Office of the Attorney General had no duty to ensure that files of the OAH did not include references to the 1987 arrest and conviction in documents filed by appellant; that such claim should have been raised in the underlying writ proceedings from the license revocation; and that such due process claims are were barred by res judicata.
The court found: “The gravamen of these causes of action is Plaintiff’s claim that he was damaged by communications to the Administrative Law Judge in his license revocation proceeding, which he alleges that Defendants either caused or should have prevented. This is an attempt to seek damages arising from Defendants’ alleged involvement in the direct[ion] and oversight of the investigation of the accusation against Plaintiff, and the prosecution of an administrative license revocation proceeding. The Court concludes that Plaintiff’s allegations in these causes of action are based on communications made in the course of official proceedings authorized by law and/or in connection with an issue under consideration or review by an executive body. [(§ 425.16, subd. (e)(1) & (2).)]”
The court granted the motion to strike the third through tenth causes of action as to respondents McCort and Bennett for the additional reasons that McCort established he did not commit any of the conduct alleged, except accompanying Bennett on a visit to appellant’s medical office, and that Bennett established she was not responsible for any of appellant’s damages as she was not employed by the Office of the Attorney General and she had no authority over the Medical Board records. The motion was granted as to defendants Simon and Jacobs for the additional reason that there was no basis for holding them liable for the Medical Board’s decision not to destroy portions of the licensing file.
The court denied appellant’s request for a continuance, finding that the proposed discovery would not result in evidence creating a prima facie case under the third through tenth causes of action against either the Office of the Attorney General or the individual respondents.
The court granted various requests for judicial notice, including appellant’s request for judicial notice of the ruling of the Sacramento County Superior Court sanctioning the Medical Board for bringing a protective order without substantial justification.
Appellant filed this timely appeal from the superior court’s order granting in part the anti-SLAPP motion. (§§ 425.16, subd. (i); 904.1, subd. (a)(13).)
DISCUSSION
We begin with an observation as to what this case is not about. The validity of the medical license revocation proceeding—long since final—is not at issue here. The superior court had jurisdiction over the subject matter and over the parties in that proceeding and any error or act in excess of jurisdiction did not deprive the court of fundamental jurisdiction. (2 Witkin, Cal. Procedure (5th ed. 2008) Jurisdiction, § 332, pp. 947-949.) That case was litigated through the appellate process and appellant may not collaterally attack that judgment here. (See People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 716, fn. 7; People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 661.) Consequently, any determination we make here will not undo that decision or result in the reinstatement of appellant’s medical license.
I. Anti-SLAPP Motion
A. The Anti-SLAPP Statute
We summarized the key features of the anti-SLAPP statute and the issues the appellate court must address in reviewing a case arising under it in Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467 (Feldman). “ ‘A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted Code of Civil Procedure section 425.16—known as the anti-SLAPP statute—to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]’ [Citations.] [¶] Determination of a special motion to strike involves a two-part inquiry. ‘ “First, the court decides whether the defendant... has made a threshold showing that the challenged cause of action is one arising from protected activity.... If the court finds such a showing has been made, it then determines whether the plaintiff... has demonstrated a probability of prevailing on the claim.” ’ [Citations.] ‘ “Put another way, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’ [Citations.]” [Citation.]’ [Citation.] ‘Thus, plaintiffs’ burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment.’ [Citation.] If the plaintiff fails to carry that burden, the cause of action is ‘subject to being stricken under the statute.’ [Citation.]” (Feldman, supra, 160 Cal.App.4th at pp. 1477-1478, fns. omitted; accord, Delois v. Barrett Block Partners (2009) 177 Cal.App.4th 940, 946-947.)
“We review the trial court’s decision to grant or deny the anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325 (Flatley).) In doing so, we consider ‘ “ ‘the pleadings, and supporting and opposing affidavits... upon which the liability or defense is based.’ (§ 425.16, subd. (b)(2).) However, we neither ‘weigh credibility [nor] compare the weight of the evidence. Rather, ... [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.’ [Citation.]” [Citation.].’ (Flatley, at p. 326.)” (Feldman, supra, 160 Cal.App.4th at p. 1478.)
B. First Step—Speech or Communication in Connection With Official Proceeding Protected Unless Illegal as a Matter of Law
Under the first prong of the anti-SLAPP analysis, section 425.16, applies to an act “in furtherance of the person’s right of petition or free speech” under either the federal or state constitution. (§ 425.16, subd. (b)(1).) Such act includes: “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;... [or] “any written or oral statement or writing made in connection with an issue under consideration or review by a[n]... executive... body, or any other official proceeding authorized by law....” (§ 425.16, subd. (e)(1) &(2).) Communications by government officials, employees, and entities are covered to the same extent as those of private individuals (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 18), and governmental entities and representatives may seek dismissal of actions because they are “persons” within the meaning of the statute (Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1114). Federal civil rights claims brought in California state courts are subject to anti-SLAPP motions. (Id. at p. 1114.)
Statements allegedly made in the course of the Medical Board investigation and the administrative disciplinary hearing were made in connection with an issue under review by the Medical Board and in connection with an official proceeding authorized by law. Consequently, communications made by respondents in connection with the Medical Board’s disciplinary proceedings are protected by the statute, unless some exception applies. Appellant contends that respondents’ communications, even if otherwise protected under the statute, fell within an exception to the statute for speech that is illegal as a matter of law. (See Flatley, supra, 39 Cal.4th 299, 320.)
In Flatley, a well-known entertainer filed an action against an attorney for numerous causes of action based on a letter from the lawyer threatening to go public with a rape allegation unless the plaintiff paid a $100,000,000 settlement. (Flatley, supra, 30 Cal.4that pp. 305-308.) The trial court denied the attorney’s anti-SLAPP motion and the Court of Appeal affirmed, holding that the attorney’s communications constituted criminal extortion as a matter of law and, therefore, were not protected under section 425.16. (Id. at p. 311.) The California Supreme Court agreed, concluding that “where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff’s action arises from activity by the defendant in furtherance of the defendant’s 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 the anti-SLAPP statute to strike the plaintiff’s action.” (Id. at p. 320, italics added.) The Flatley court “made clear, however, that its holding was limited to ‘the specific and extreme circumstances of this case, ’ in which the assertedly protected communications, as a matter of law, fell outside the ambit of protected speech. ([Flatley, ] at p. 332, fn. 16.)” (Cabral v. Martins (2009) 177 Cal.App.4th 471, 480.) The court explained that “[i]n such a narrow circumstance, where either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence, the motion must be denied.... If, however, a factual dispute exists about the legitimacy of the defendant’s conduct, it cannot be resolved within the first step but must be raised by the plaintiff in connection with the plaintiff’s burden to show a probability of prevailing on the merits.” (Flatley, at p. 316, italics added.)
Flatley was followed in Cohen v. Brown (2009) 173 Cal.App.4th 302, 316-318, a case, like Flatley, in which the evidence conclusively showed the allegedly protected conduct constituted extortion. The cases have consistently confined the anti-SLAPP illegality exception to a narrow range of extreme conduct involving such activities as extortion (Cohen v. Brown, at pp. 316-318); violence, vandalism and extreme harassment (Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1289-1291, 1296); and “effectively conceded” illegal campaign money laundering in violation of the Political Reform Act of 1974 (Gov. Code, § 81000 et seq.) (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1361, 1362-1363, 1365-1367, disapproved in part on other grounds by Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.)
Courts have concluded that communications do not fall outside the protection of the anti-SLAPP statute, despite claimed illegality, where they involve an alleged failure to comply with a legal procedure. (See, e.g., Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 [claims were protected, although based in part on defendant’s failure to comply with a deposition subpoena in a civil action]; Miller v. Filter (2007) 150 Cal.App.4th 652, 659, 661-662 [defendants’ actions as deputy district attorneys prosecuting plaintiffs were not undeserving of anti-SLAPP statute protection simply because the district attorney failed to comply with the ministerial duty to file written appointments of defendants as deputy district attorneys].)
As our colleagues in Divisions Three and Four of this court have observed, “ ‘[C]onduct that would otherwise come within the scope of the anti-SLAPP statute does not lose its coverage... simply because it is alleged to have been unlawful or unethical.’ [Citations.] An exception to the use of section 425.16 applies only if a ‘defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law.’ [Citation.] The exception does not apply here.” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 285; accord, Cabral v. Martins, supra, 177 Cal.App.4th 471, 482; see also Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 285; Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 965-969; Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 460.)
Recently, the Court of Appeal in Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 (Mendoza), concluded that Flatley, supra, 39 Cal.4th 299 intended the phrase “ ‘illegal’... to mean criminal, and not merely violative of a statute.” Mendoza explained: “First, the court in Flatley discussed the attorney’s underlying conduct in the context of the Penal Code’s criminalization of extortion. Second, a reading of Flatley to push any statutory violation outside the reach of the anti-SLAPP statute would greatly weaken the constitutional interests which the statute is designed to protect.... [A] plaintiff’s complaint always alleges a defendant engaged in illegal conduct in that it violated some common law standard of conduct or statutory prohibition, giving rise to liability, and we decline to give plaintiffs a tool for avoiding the application of the anti-SLAPP statute merely by showing any statutory violation.” (Mendoza, at p. 1654.)
We are convinced that the communicative actions of respondents here do not fall within the very narrow and extreme circumstances required by Flatley to exclude otherwise protected speech and communicative conduct from the reach of the anti-SLAPP statute. Certainly respondents do not concede their communications were illegal. They vigorously dispute that anything they did, failed to do, or communicated was illegal. They contend the evidence shows that at the time of the investigation and hearing, appellant, and not they, was the source of any information in the Medical Board or OAH files concerning the 1987 incident. Nor do we believe that the “evidence conclusively establishe[d] that the assertedly protected speech or petition activity was illegal as a matter of law.” (Flatley, supra, 39 Cal.4th at p. 320.)
The gravamen of appellant’s third through tenth causes of action is his claim that he was damaged by communications to the administrative law judge in his license revocation proceeding and that respondents either caused or should have prevented those communications. Appellant contends that respondents’ failure to ensure that no reference to the 1987 incident was included in the Medical Board files was illegal under both Penal Code section 851.8 and the sealing orders. However, the evidence does not conclusively establish that either the Penal Code or the sealing orders required the Office of the Attorney General or any of the individual respondents to remove the information from the Medical Board or OAH files, where the source of such information was appellant or his attorney.
Moreover, the evidence does not show that investigator Bennett’s communications to consultants formerly retained by the Medical Board or references to the 1987 incident were ever heard or seen by the administrative law judge presiding over appellant’s licensing hearing. The evidence is to the contrary. In a declaration, respondent Simon declared that, before the hearing, she retained a new expert who was never provided information about the 1987 incident; she removed and/or redacted all reference to the 1987 incident from all the files related to the administrative action; and she requested the Medical Board to remove and redact any record of appellant’s 1987 arrest and conviction from its licensing and investigation files, as well as from its central file.
The reference in the nonconfidential settlement conference statement filed by Simon to Dr. Victor’s opinion that appellant’s “conduct was likely the result of his mental status, and he would benefit from psychotherapy, ” although possibly in breach of the Attorney General’s representation that it would not use consultants who had seen information related to the 1987 arrest, does not refer to the 1987 incident in any way and certainly is not the type of criminal conduct described in Flatley, supra, 39 Cal.4th 299, and other cases discussing the illegality exception.
We also reject appellant’s attempt to bootstrap the possible ministerial failure to expunge from the Medical Board files all references to the 1987 incident into “criminal” conduct as a “contempt of court” under Penal Code section 166, subdivision (a)(4), which provides: “(a) Except as provided in subdivisions (b), (c), and (d), every person guilty of any contempt of court, of any of the following kinds, is guilty of a misdemeanor: [¶]... [¶] (4) Willful disobedience of the terms as written of any process or court order or out of state court order, lawfully issued by any court, including orders pending trial.”
Punishment for contempt must rest on a clear, intentional violation of a specific, narrowly drawn, and valid order. (8 Witkin, Cal. Procedure (5th ed. 2008) Enforcement of Judgment, § 340, pp. 365-366.) In order to prove an indirect contempt based on disobedience of a prior court order, each of the following elements must be proved beyond a reasonable doubt: (1) facts establishing the court’s jurisdiction, such as personal service with the court’s order and the validity of the underlying order allegedly violated; (2) the defendant’s knowledge of the order disobeyed; (3) the defendant’s ability to comply; and (4) the defendant’s willful disobedience of the court order. (In re Coleman (1974) 12 Cal.3d 568, 572 [contempt must be established beyond a reasonable doubt]; People v. Gonzalez (1996) 12 Cal.4th 804, 816 [elements]; In re Jones (1975) 47 Cal.App.3d 879, 881 [elements]; Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2009) ¶¶ 431-432.)
At the outset, respondents contend that the sealing orders of the Orange County Superior Court are void and, therefore, cannot form the basis for any illegality on their part. We are persuaded by the Fourth Appellate District Court of Appeal’s opinion that the superior court issuing the initial order had jurisdiction in the fundamental sense in that it had jurisdiction over the subject matter and over the parties, such that the order, albeit in excess of jurisdiction, was final and not generally subject to collateral attack.
In its unpublished opinion in Soderling v. Superior Court, supra, G027337, the Fourth Appellate District, Division Three, concluded that whether or not Judge Carter exceeded his jurisdiction in issuing the initial sealing order, the order was final and a different superior court judge had no power to vacate it. It held that the superior court did not lack jurisdiction in the fundamental sense when it ordered appellant’s records sealed. It had jurisdiction over the parties and the subject matter. The appellate court also examined whether the trial court had granted relief that it had no power to grant and concluded that the court had the power to seal records under Penal Code section 851.8. Any error by the court was, at most an error of law or fact, not one of fundamental jurisdiction. In so concluding, the Court of Appeal disagreed with the analyses of People v. Glimps (1979) 92 Cal.App.3d 315, 321-326 [reversing trial court’s refusal to vacate previous sealing order and holding the sealing order was made without legislative authority and was thus in excess of jurisdiction and void] and People v. Mendez (1991) 234 Cal.App.3d 1773 [concluding that the Attorney General was not estopped from challenging the action of a court that, years after a felony robber conviction became final, substituted a misdemeanor conviction for the felony, and sealed the records.]
Nevertheless, a final order that is not void for want of fundamental jurisdiction, but was rendered in excess of jurisdiction because the superior court erroneously interpreted a statute, will not support a contempt order. (See People v. Gonzalez (1996) 12 Cal.4th 804, 817-818; Brady v. Superior Court (1962) 200 Cal.App.2d 69, 77, 82; 2 Witkin, Cal. Procedure, supra, Jurisdiction, § 296, pp. 907-908.) “ ‘The decisions do not use the term, but the attack in such cases might be considered to be collateral, and the proceedings apparently fall into a special category because they are penal in nature.’ [Citation.]” (2 Witkin, Cal, Procedure, supra, Jurisdiction, § 337, p. 958, quoting Pacific Mutual Life Ins. Co. of California v. McConnell (1955) 44 Cal.2d 715, 727.) Here, it appears the initial court order by Judge Carter declaring appellant innocent and sealing the records was in excess of the court’s jurisdiction because under Penal Code section 851.8, subdivision (d), such order could only be made where “a person has been arrested and an accusatory pleading has been filed, but where no conviction has occurred....” (Pen. Code, § 851.8, subd. (d).) In appellant’s case, he had been convicted, so the statutory requisites had not been met. Thus, appellant has failed to show that the order would support a finding of contempt.
Moreover, assuming the order was validly served and provided notice to the Office of the Attorney General and the individual respondents, appellant has failed to demonstrate conclusively that respondents herein had authority over the Medical Board’s actions with respect to its files at the time; or that respondents willfully disobeyed the court order. These are factual determinations and are not conclusively established here by the evidence. Appellant has failed to show the absence of a factual dispute with respect to these elements.
The evidence below did not “conclusively establish[] that the assertedly protected speech or petition activity was illegal as a matter of law.” (Flatley, supra, 39 Cal.4th at p. 320.) We conclude that respondents have made a threshold showing that the challenged cause of action is one arising from protected activity and appellant has not met his burden of conclusively establishing that the assertedly protected activity was illegal.
C. Second Step—Probability of Prevailing
In Flatley, supra, 39 Cal.4th 299, the court emphasized “that the question of whether the defendant’s 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 law—either through defendant’s concession or by uncontroverted and conclusive evidence—is not the same showing as the plaintiff’s second prong showing of probability of prevailing.” (Flatley, at p. 320.) To satisfy this second step of the anti-SLAPP analysis, “ ‘ “the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’ [Citations.].” [Citation.]’ [Citation.] ‘Thus, plaintiffs’ burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment.’ [Citation.] If the plaintiff fails to carry that burden, the cause of action is ‘subject to being stricken under the statute.’ [Citation.]” (Feldman, supra, 160 Cal.App.4th at pp. 1477-1478; accord, Delois v. Barrett Block Partners, supra, 177 Cal.App.4th at pp. 946-947.) We therefore turn to the second step of the anti-SLAPP analysis: whether appellant has demonstrated a “probability of prevailing” on his claims.
Respondents contend that as to the third through tenth causes of action of his writ petition/complaint, appellant has failed to “ ‘ “demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ’ [Citation.]” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741; Feldman, supra, 160 Cal.App.4th at pp. 1477-1478.)
(1) Res judicata and collateral estoppel
Respondents raised numerous affirmative defenses that the trial court found applied and prevented appellant from demonstrating a probability of prevailing. Respondents first contend that the doctrine of res judicata bars the stricken claims. The trial court agreed, concluding that appellant’s primary damage claim arose from the revocation of his medical license and that any challenge to the revocation of the license was barred by res judicata. We agree.
“When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.” (Rest.2d Judgment, § 27, p. 250.) “ ‘Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, “precludes relitigation of issues argued and decided in prior proceedings.” [Citation.]’ [Citation.]. Res judicata precludes the relitigation of a cause of action only if (1) the decision in the prior proceeding is final and on the merits; (2) the present action is on the same cause of action as the prior proceeding; and (3) the parties in the present action or parties in privity with them were parties to the prior proceeding. (Busick v. Workmen’s Comp. Appeals Bd. (1972) 7 Cal.3d 967, 974.) Res judicata bars the litigation not only of issues that were actually litigated in the prior proceeding, but also issues that could have been litigated in that proceeding. (Id. at p. 975.)” (Zevnik v. Superior Court (2008) 159 Cal.App.4th 76, 82, fn. omitted.) Our review is de novo. (Murphy v. Murphy (2008) 164 Cal.App.4th 376, 399.)
“Collateral estoppel precludes the relitigation of an issue only if (1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is final and on the merits; and (5) the party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.)” (Zevnik v. Superior Court, supra, 159 Cal.App.4th at p. 82.)
(2) Previous decision final and on the merits
In determining whether res judicata applies, the initial question is whether the denial by Division Three of this court in September 2006 of appellant’s writ petition challenging his license revocation (Soderling v. Superior Court, supra, A115226) was final and on the merits for purposes of application of the doctrine. We conclude that it was. The denial of a writ of mandate or prohibition without an opinion ordinarily is not res judicata. (Kowis v. Howard (1992) 3 Cal.4th 888, 891; Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 640; see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶¶ 15:241.1, 15:241.2, p. 15-98.2.) However, as in this case, when a petition for review in the Court of Appeal or the California Supreme Court is the exclusive means of obtaining review of a quasi-judicial decision, that court’s summary denial of such a petition is deemed a final judicial determination on the merits for res judicata purposes, and it is immaterial that the reviewing court does not give reasons for its conclusions. (Abraham v. Workers’ Comp. Appeals Bd. (2003) 113 Cal.App.4th 1082, 1090.)
Recently, the Court of Appeal in Fink v. Shemtov (2010) 180 Cal.App.4th 1160 discussed this exception in holding that summary denial of a writ petition was not necessarily final and on the merits for purposes of the vexatious litigant statute (§ 391, subd. (b)(1)), where the record contained no evidence regarding the nature of the writ proceedings relied upon by the trial court to declare the plaintiff a vexatious litigant. The court observed: “In Leone v. Medical Board (2000) 22 Cal.4th 660, 669, the California Supreme Court explained, ‘a summary denial of a writ petition on a pretrial issue does not establish the law of the case.’ The Supreme Court distinguished ‘writ petitions challenging pretrial superior court rulings that could be reviewed on appeal from the judgment ultimately entered in the action’ from ‘situations in which a writ petition was the only authorized mode of appellate review.’ (Id. at p. 670.).... [¶] As to the latter type of writ petitions, discussed in Leone v. Medical Board, constituting the exclusive means of obtaining appellate review, the Supreme Court explained, ‘an appellate court must judge the petition on its procedural and substantive merits, and a summary denial of the petition is necessarily on the merits. [Citations.] An appellate court that summarily denies a writ petition for lack of substantive merit or for procedural defect thereby fulfills its duty to exercise the appellate jurisdiction vested in it by the state Constitution’s appellate jurisdiction clause.’ (Leone v. Medical Board, supra, 22 Cal.4th at p. 670.) Examples of instances in which appellate review may be obtained only through a writ petition include challenges to (1) a ruling on a motion to disqualify a judge under section 170.3, subdivision (d); (2) an order granting or denying a motion to expunge a lis pendens under section 405.39; (3) an order compelling or refusing the disclosure of public documents under the California Public Records Act under Government Code section 6259, subdivision (c); (4) a superior court order following review of an administrative decision revoking, suspending, or restricting a physician’s license under Business and Professions Code section 2337 ; and (5) an order denying a motion to quash service of process based on a lack of personal jurisdiction [citation].” (Fink v. Shemtov, supra, 180 Cal.App.4th at pp. 1172-1173, second and third italics added.)
Similarly, summary denial of a writ petition for review of a Public Utilities Commission decision is res judicata (Consumers Lobby Against Monopolies v. Public Utilities Commission (1979) 25 Cal.3d 891, 901, disapproved on other grounds in Kowis v. Howard, supra, 3 Cal.4th at pp. 896-897 & fn. 2; see P.G. & E. Corp. v. Public Utilities Commission (2004) 118 Cal.App.4th 1174, 1193), as is the summary denial by the Court of Appeal of a petition for review of a Workers’ Compensation Appeals Board decision (Abraham v. Workers’ Comp. Appeals Bd., supra, 113 Cal.App.4th at pp. 1089-1090). (See Schwing, Expert Series: California Affirmative Defenses (2010 ed.) § 14:13; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 15:96.2, p. 15-47.)
Here, as appellant recognized in his previous writ petition to Division Three of this court, a statutory writ petition from the superior court order was the exclusive method of obtaining appellate review of the Medical Board’s decision revoking appellant’s medical license pursuant to Business and Professions Code section 2337. (Leone v. Medical Board, supra, 22 Cal.4th at p. 670.) As Chief Justice George observed in his concurring opinion in Leone v. Medical Board: “[T]he statutory procedure for reviewing an administrative decision revoking, suspending, or modifying a physician’s license to practice medicine includes what is essentially the equivalent of a direct appeal—the physician is afforded the right to a full and complete hearing at the administrative level, and then has the right to obtain review of the administrative decision through administrative mandate in the superior court. (Leone v. Medical Board, at p. 672, conc. opn. of George, C.J.) The denial of appellant’s writ petition by the Third Division of this court must be considered to have been final and on the merits.
(3) Same causes of action
We next consider whether the dismissed causes of action were the same as those in the prior proceeding, mindful that “[r]es judicata bars the litigation not only of issues that were actually litigated in the prior proceeding, but also issues that could have been litigated in that proceeding.” (Zevnik v. Superior Court, supra, 159 Cal.App.4th at p. 82, italics added.) We are convinced, as was the trial court, that the core claim here either was raised or could and should have been raised in the prior proceeding challenging his license suspension.
“For purposes of the doctrine of res judicata, California law identifies a single cause of action as ‘the violation of a single primary right.’ (Crowley v. Katleman (1994) 8 Cal.4th 666, 681.) ‘The plaintiff’s primary right is the right to be free from a particular injury, regardless of the legal theory on which liability for the injury is based. [Citation.] The scope of the primary right therefore depends on how the injury is defined. A cause of action comprises the plaintiff’s primary right, the defendant’s corresponding primary duty, and the defendant’s wrongful act in breach of that duty.’ [Citation.]” (Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 227, fn. omitted; see Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 904.) “In determining the primary right, ‘the significant factor is the harm suffered.’ [Citation.]” (Takahashi v. Board of Education (1988) 202 Cal.App.3d 1464, 1474.)
“ ‘As far as its content is concerned, the primary right is simply the plaintiff's right to be free from the particular injury suffered. [Citation.] It must therefore be distinguished from the legal theory on which liability for that injury is premised: “Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.” [Citation.] The primary right must also be distinguished from the remedy sought: “The violation of one primary right constitutes a single cause of action, though it may entitle the injured party to many forms of relief, and the relief is not to be confounded with the cause of action, one not being determinative of the other.” [Citation.]’ ” (Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 904.)
The crux of the claims raised in the third through tenth causes of action are that respondents’ use of the 1987 incident during the investigation and conduct of the administrative proceedings, and respondents’ failure to excise such information from the Medical Board records and to treat the incident as if it never happened, resulted in an unfair hearing and in damages resulting from the loss of appellant’s medical license. In his previous challenge to the revocation of his medical license, appellant referred extensively to the use of the 1987 incident in violation of the court order and challenged the fairness of the hearing. He asserted, among other things, that the prohibited use of the 1987 incident during the investigation tainted the administrative proceedings and contributed to that unfairness.
Appellant argued in the opening paragraph of his writ petition in the Court of Appeal, First Appellate District, Division Three, in Soderling v. Superior Court, supra, A115226: “A California Physician has been deprived of his license after having been subjected to a grossly unfair investigation and hearing. The Medical Board of California... unrelentingly pursued Eric Soderling, M.D.... in defiance of a court order finding Dr. Soderling factually innocent of criminal charges and ordering destruction of all records regarding his arrest.... Despite that order, the [Medical Board] initiated discipline against Soderling, in part based upon a drug-related offense in 1987, for which he had been found factually innocent.” The petition further asserted: “The revocation of Soderling’s license to practice medicine was an abuse of discretion by the [Medical Board], which was from the outset tainted by the [Medical Board’s] disregard for the court order expunging a criminal arrest against Soderling.” Appellant’s writ petition included exhibits referring to “the drug arrest.” In the petition, appellant detailed the factual chronology of Judge Carter’s granting of the sealing order, Judge Makino’s vacating and later reinstating the sealing order following the Fourth Appellate District, Division Three’s granting of his writ petition. He referred to the initial patient complaint and stated: “From that point on, Soderling was subjected to an unfair investigation and Accusation which relied, at least in part, on the 1987 drug-related arrest. The [Medical Board] claimed that Soderling had been convicted of trafficking in controlled substances, contrary to the court having found him factually innocent of such charges. (Exhibit E is a Petition to Compel Psychiatric Examination relying in part upon Soderling’s expunged arrest to compel a psychiatric evaluation of Soderling.)” Appellant contended that the Medical Board “sought to discipline him, in part, for alleged mental illness based on [that] psychiatric evaluation....” Appellant referred to the contempt motion he filed in the Sacramento County Superior Court for violation of the court order, and the Medical Board’s subsequent amendment of its Accusation to eliminate references to alleged mental illness, but he alleged the Medical Board continued its efforts to bring alternative grounds for discipline against him. The first issue identified by appellant in his writ petition as a “basis for relief” was “whether the [Medical Board] can fairly adjudicate disciplinary charges against a physician after it has already violated a court order to seal records regarding that physician....” The final basis of appellant’s claim for relief was that, “Soderling was targeted by the [Medical Board], despite or maybe because of a court order prohibiting the [Medical Board] from taking any action based upon a 19 year-old drug-related arrest. The [Medical Board] attempted to utilize that information, and when it could not, nevertheless revoked Soderling’s license based on alleged professional misconduct....”
In the memorandum of points and authorities supporting his previous writ petition in Soderling v. Superior Court, supra, A115226, appellant reiterated these assertions. In addition, appellant asserted that, “[b]y letter dated April 9, 2002, from Bobbie McBride, licensing analyst for the [Medical Board], the request to expunge and/or destroy records was denied, but the court’s order verifying that Soderling [had been] adjudged factually innocent was confirmed.... It was reasonable for Soderling to believe that the [Medical Board] would not attempt to utilize information regarding his arrest in any further disciplinary proceedings. Unfortunately, the [Medical Board] did use this information against Soderling at the earliest opportunity.” Appellant further argued that the order compelling a psychiatric examination “was obtained by way of a Petition which referred to the 1987 criminal arrest of Soderling.... In that petition, the [Medical Board] falsely claimed that Soderling had been actually convicted of trafficking in controlled substances, knowing full well that the court had found him factually innocent!”
Appellant contends the primary right in the present action “was to have the benefit of the orders under Penal Code [section] 851.8 and to have the statute complied with. Respondents’ primary duty was to comply with the order and particularly to treat [a]ppellant as if the 1987 incident never occurred.” Not only was this assertion directly raised in his original petition for administrative writ filed with the superior court in June 2006, and in his petition for writ of mandate filed with Division Three of this court in September 2006, but when we look, as we must, to the injury alleged to be sustained by appellant, it becomes clear that the current action was based on the same primary right as the former. In the instant action, as in the former, the injury claimed to have been suffered by appellant arose from the revocation of his medical license and the asserted denial of a fair administrative proceeding. At the root of that unfairness was alleged to be the Medical Board’s use of the 1987 incident and the Medical Board’s asserted refusal to comply with the statute and previous court order to treat the matter as never having occurred. Nor does it assist appellant that here he has asserted constitutional claims based on asserted violation of his due process rights under the United States and California Constitutions (fourth, fifth, sixth, and seventh causes of action; and the eighth cause of action for intentional infliction of emotional distress). (See Takahashi v. Board of Education, supra, 202 Cal.App.3d at p. 1476 [Plaintiff school teacher’s alleged causes of action arose in conjunction with or as a result of alleged wrongful termination of her employment. Plaintiff specifically alleged “that each act complained of caused the dismissal (wrongful discharge, conspiracy, unconstitutional discharge, discharge in violation of state civil rights) or was a consequence of the termination (emotional distress, damages), part and parcel of the violation of the single primary right, the single harm suffered. [Citation.]”].)
Appellant further contends that the causes of action raised in his previous petition (Soderling v. Superior Court, supra, A115226) are not the same as those he raises here, because he did not discover that references to the 1987 incident had not been removed from his file until after the previous writ proceeding had concluded. This assertion cannot be sustained. The previous writ petition specifically challenged the fairness of the administrative proceeding though the determination and penalty imposed, on the basis, among others, that the entire administrative proceeding had been tainted by the refusal to treat the 1987 incident as if it had never occurred and by the use of that information in the initiation of the revocation action and in the investigation (including the psychiatric examination of appellant) of the patients’ complaints. Furthermore, appellant knew that he and his attorney had provided information related to the 1987 incident to the Medical Board and also knew that the Medical Board had denied his request to expunge the conviction from its file as early as 2002. The evidence presented here demonstrates that as a matter of law appellant should have discovered the facts underlying his third through tenth causes of action in connection with his original petition for administrative writ filed with the superior court in June 2006 and his petition for writ of mandate filed with Division Three of this court in September 2006. The evidence does not indicate that appellant was prevented from looking at his Medical Board files at that time. Appellant did not seek to view his file until that matter had been resolved finally and unfavorably to him. Citing Planning & Conservation League v. Castaic Lake Water Agency, supra, 180 Cal.App.4th 210 in his reply brief, appellant argues that res judicata is not a bar to claims arising after the initial case is filed. However, the claim here arose before the filing of appellant’s writ petition in the license revocation action. As we have stated, the claim here is that information about the 1987 incident was used in the administrative proceeding and that respondents did not comply with court orders or Penal Code section 851.8 requiring that the record be sealed and the incident treated as if it never happened. That claim did not arise after appellant filed his writ petition challenging the license revocation in the previous superior court action, but existed at the time appellant filed that writ petition.
As the claims in the instant action arose from the asserted violation of the same primary right asserted in the previous superior court proceeding challenging the license revocation, we conclude the claims were the same as those in the prior proceeding for purposes of application of res judicata.
(4) Privity
Finally, we consider whether the parties below were the same parties as in the previous action or parties in privity with them. (Busick v. Workmen’s Comp. Appeals Bd., supra, 7 Cal.3d 967, 974.) Appellant contends for the first time in his reply brief that respondents were neither parties to the administrative proceeding, nor in privity with the Medical Board for purposes of application of the doctrine of res judicata or collateral estoppel. We disagree.
We note appellant overlooks the fact that only the party against whom collateral estoppel (or issue preclusion) is raised need be the same in both proceedings. (Risam v. County of Los Angeles (2002) 99 Cal.App.4th 412, 420.) Appellant was a party to both proceedings. We address the privity requirement, because we find the narrower doctrine of res judicata (claim preclusion) applies.
“The concept of privity for the purposes of res judicata or collateral estoppel refers ‘to a mutual or successive relationship to the same rights of property, or to such an identification of interest of one person with another as to represent the same legal rights [citations] and, more recently, to a relationship between the party to be estopped and the unsuccessful party in the prior litigation which is “sufficiently close” so as to justify application of the doctrine of collateral estoppel. [Citations.]’ [Citations.]” (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1069-1070.) “ ‘ “[T]he determination of privity depends upon the fairness of binding [a party] with the result obtained in earlier proceedings in which it did not participate. [Citation.] ‘ “Whether someone is in privity with the actual parties requires close examination of the circumstances of each case.” ’ ” ’ [Citation.] ‘This requirement of identity of parties or privity is a requirement of due process of law.’ [Citation.]” (Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, 689; accord, Planning & Conservation League v. Castaic Lake Water Agency, supra, 180 Cal.App.4th at pp. 229-230.)
It is well established that “ ‘ “[T]he agents of the same government are in privity with each other, since they represent not their own rights but the right of the government. [Fn. omitted.]” [Citations.]’ (People v. Sims (1982) 32 Cal.3d 468, 487; see also Zapata v. Department of Motor Vehicles (1991) 2 Cal.App.4th 108, 114; Miller v. Superior Court [(1985)] 168 Cal.App.3d [376, ] 385.)” (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn., supra, 60 Cal.App.4th at p. 1073, fn. 12.) Nearly all the cases finding privity between government agencies and their agents arise in the context of the claim that a nonparty to the prior action was, nevertheless bound by it. In this case, respondents seek to use the doctrine defensivelyto bind appellant, a party to the prior proceeding. A fortiori, the principle of privity among agents of the same government applies here, where the appellant was party to the former action. Respondents Bennett and McCort acted as agents of the Medical Board in pursuing the investigation. Respondents Simon and Jacobs were employees of the Office of the Attorney General (and agents of the Medical Board) in pursuing the investigation and prosecution of the licensing action. The Office of the Attorney General was a coordinate government entity with the Medical Board in the prosecution of the license revocation. The identification of interest between respondents and the Medical Board with respect to the license revocation proceeding were such that it is not unfair to bind appellant by the previous litigation. We conclude respondents were in privity with the Medical Board for purposes of applying res judicata.
As we have concluded that the doctrine of res judicata applies here to bar the stricken claims, we necessarily conclude that appellant has failed to demonstrate a probability of prevailing in the litigation, the second step of the anti-SLAPP analysis. Therefore, we conclude the trial court did not err in granting the anti-SLAPP motion.
Because res judicata bars the stricken claims, we need not address the other bases upon which the trial court concluded appellant had failed to demonstrate a probability of prevailing on the action. Nor need we address appellant’s claim that the court abused its discretion in denying his request for leave to amend the complaint to bring the prayer into conformity with the allegations of the complaint. The proposed amendment would have had no bearing on the applicability of res judicata here to bar the third through tenth causes of action.
II. Denial of Discovery Motion and Continuance
Appellant contends the court erred in denying him leave to conduct discovery pursuant to section 425.16, subdivision (g). As we observed in Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, at page 617 (Tutor-Saliba Corp.): “Generally, discovery is closed once a motion to strike under section 425.16 has been filed. (§ 425.16, subd. (g).) However, the trial court may allow discovery limited to the issues raised by the motion to strike upon ‘a timely and proper showing in response to the motion to strike.’ [Citation.] The ‘proper showing’ includes ‘good cause’ for the requested discovery. [Citation.] ‘We review for abuse of discretion the trial court’s decision as to whether a plaintiff has complied with the requirements of section 425.16, subdivision (g) to merit discovery prior to a hearing on the motion to strike. [Citations.]’ (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1247.)” In considering whether the trial court abused its discretion in finding a lack of good cause, we noted that “ ‘ “[u]nder this standard the reviewing court will not disturb the trial court’s decision unless it ‘has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.’ ” ’ ([Tuchscher Development Enterprises, Inc., ] at p. 1247.)” (Tutor-Saliba Corp., at p. 617.) We cannot find an abuse of discretion here.
Section 425.16, subdivision (g), provides: “All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. 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.”
Appellant requested extensive discovery, including: depositions of persons most knowledgeable of the Office of the Attorney General on eight topics and production of 10 categories of documents; depositions of persons most knowledgeable of nonparty Medical Board by subpoena on nine topics and production of 11 categories of documents; deposition by subpoena of person most knowledgeable of nonparty OAH on five topics and production of three categories of documents; depositions and production of documents of four nonparty doctors (including Victor and Duskin) and one nonparty psychologist who had been retained by the Medical Board as expert witnesses in the administrative action, but who never testified or participated in the administrative hearing; deposition and production of documents of Dr. John Dervin, who testified at the administrative hearing regarding the standard of care (Dervin was never provided information regarding the 1987 incident and his testimony did not reference that incident, any other criminal history, or drug abuse by appellant); deposition and production of documents of respondent Bennett; and deposition of respondent Jacobs. The discovery sought thus included more than 100 categories of discovery, including the depositions of at least 10 individuals.
Appellant argues that the Office of the Attorney General and the Medical Board were the exclusive sources of information that he was unable to obtain without the aid of judicial process. The subpoenas to the Office of the Attorney General and the Medical Board sought, for example, all communications “between [Office of the Attorney General] and [Medical Board] regarding Soderling during the period of February 20, 1998 and October 5, 2001.” They also separately sought all communications “between the [Bureau of Criminal Identification and Information division of the Office of the Attorney General] and the [Medical Board] regarding Soderling during the period of October 5, 2001 and the date of [response].” Appellant also sought production of his licensing and enforcement files, together with notes regarding entries or redactions and the file of the administrative law judge who heard the case pertaining to the revocation proceeding.
To justify lifting the discovery stay mandated by the anti-SLAPP statute, the plaintiff must demonstrate that the proposed discovery is both necessary in the context of the issues raised by the anti-SLAPP motion and must explain what facts the plaintiff expects to uncover. (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 593.)
In summarizing the discovery sought and its relevance, appellant maintained that he needed the files and that respondents would not release all documents in the files. He stated that production of the files was insufficient without testimony regarding the information that was redacted from the files and the circumstances surrounding redaction. He further asserted that the history of communications he sought would establish the knowing, willful, and continuing violation of Penal Code section 851.8 and the court orders; whether the Bureau of Criminal Identification and Information communicated the demands and instructions required by the court orders; and responses to such communications. He argued that respondents’ assurances regarding future compliance were suspect, and that the examinations of the nontestifying expert witnesses were necessary “to prove the circumstance of the violation from their recollection and files.”
The court denied appellant’s motion, finding the “discovery sought would subvert the purposes of the anti-SLAPP statute, ” which was “intended to allow defendants to seek dismissal of lawsuits based on conduct in furtherance of the right of free speech at an early stage without the need to incur unnecessary expense from discovery. [Citations.]” The court observed that the bulk of discovery sought concerned conduct or communications before the administrative hearing and that appellant had not shown “good cause” for the discovery sought in order to allow him to respond to any of the defenses raised by respondents. Nor had appellant shown good cause for the discovery sought in order to make out a prima facie case regarding his claim that respondents continued to violate the Orange County Superior Court orders or Penal Code section 851.8, as he alleged he had already seen the file of the OAH, the Medical Board was not a party, and it was not apparent how the Medical Board enforcement or licensing files would support injunctive relief against respondents.
We agree with the trial court that appellant failed to show good cause for the discovery by failing to explain how information he reasonably expected to discover would establish his prima facie case by countering any of the several affirmative defenses raised by respondents to that prima facie case. Appellant did not connect any particular discovery sought with the affirmative defenses raised by respondents.
Much of the focus of appellant’s discovery motion and his argument at the motion hearing was that he was unable to trust representations of the Office of the Attorney General or the Medical Board that their files currently contained no reference to the 1987 incident. However, it is established that “[d]iscovery may not be obtained merely to ‘test’ the opponent’s declarations.” (1-800 Contacts, Inc. v. Steinberg, supra, 107 Cal.App.4th at p. 593.) As for appellant’s assertions that the discovery would disclose continuing violations of Penal Code section 851.8 and the court orders, any abuse of discretion in refusing such discovery—and we find none—would necessarily be rendered harmless by the court’s denial of the anti-SLAPP motion as to the first and second causes of action. (See fn. 8, ante, at p. 11.)
Moreover, the extensive discovery sought by appellant, for the most part, appears to be cumulative of information already in his possession. As the court observed, appellant already had seen the file regarding the disciplinary action maintained at the OAH.
On appeal, appellant argues that the court ignored his need for discovery to establish the illegality of respondents’ conduct and communications so that he could counter their showing that their actions and communications were protected by the anti-SLAPP statute. It appears to us that the extensive discovery sought by appellant was in the nature of a generalized “fishing expedition, ” in which appellant hoped to uncover evidence of some additional actions by respondents that might shore up his claim that respondents’ acted illegally. “To ‘encourage continued participation in matters of public significance’ (§ 425.16, subd. (a)), the anti-SLAPP statute ‘protect[s] defendants from having to expend resources defending against frivolous SLAPP suits unless and until a plaintiff establishes the viability of its claim by a prima facie showing.’ (Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1124...; see also Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 247... [‘We conclude that to allow appellant such extensive discovery would subvert the intent of the anti-SLAPP legislation’].) ‘Indeed, “[t]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.” ’ [Citation.]” (Paterno v. Superior Court (2008)163 Cal.App.4th 1342, 1348-1349.)
Appellant relies upon dicta in Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855 (Lafayette Morehouse), for the proposition that trial courts should “liberally” exercise their discretion to authorize reasonable discovery “when evidence to establish a prima facie case is reasonably shown to be held, or known, by defendant or its agents and employees.” (Id. at p. 868.) We have concluded, as did the trial court, that appellant failed to make a reasonable showing that evidence to establish his prima facie case was held by respondents. Moreover, the dicta of Lafayette Morehouse has been superseded as explained in Paterno v. Superior Court, supra, 163 Cal.App.4th at page 1351: “The Lafayette Morehouse decision ‘predate[s] the 1997 amendment requiring a broad interpretation of section 425.16.’ (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 478.) Accordingly, we join the courts that have limited the reach of Lafayette Morehouse’slanguage. [Citations.]”
The court acted well within its discretion in concluding that the voluminous and time-consuming discovery sought by appellant would undermine the purpose of the anti-SLAPP statute, absent a more specific showing as to what appellant expected to find and from whom, how the evidence would help him to demonstrate conclusively that respondents’ otherwise protected communications were illegal, and how the evidence would assist him in overcoming respondents’ specific affirmative defenses to his asserted prima facie showing of a likelihood of success.
This conclusion also disposes of appellant’s contention that the court abused its discretion in refusing to continue the anti-SLAPP motion until he could conduct discovery in his Sacramento action against the Medical Board. Having failed to make his case for discovery here, appellant necessarily failed to show good cause for a continuance. The further continuance of resolution of the anti-SLAPP motion pending discovery in the Sacramento case would undermine the purpose and effectiveness of the anti-SLAPP statute just as surely as allowing discovery to be conducted in this action before resolution of the motion to strike.
Appellant argues that the continuance was justified, given what he characterizes as the Attorney General’s “concerted effort to thwart [appellant’s] discovery” in the Sacramento action until after the anti-SLAPP motion here, by seeking an unjustified protective order in that proceeding. The trial court granted appellant’s request for judicial notice of the Sacramento County Superior Court order sanctioning the Attorney General and the Medical Board for bringing the protective order without substantial justification and so may be deemed to have considered that order in its decision. The court could properly determine that, regardless of the motives of the Attorney General in seeking to delay discovery in the Sacramento action, the continuance itself was unlikely to result in evidence creating a prima facie case against respondents on the third through tenth causes of action of the writ petition/complaint.
On appeal, appellant cites no authority regarding standards for determining whether the trial court abused its discretion in denying a continuance. He relies upon his assertions that the Attorney General sought to delay discovery in the Sacramento action and that the Medical Board and the Attorney General had a mandatory duty to comply with Penal Code section 851.8 by destroying records of the 1987 incident to support his claim. These assertions do not address the showing that must be made by a plaintiff seeking relief from the stay of discovery in anti-SLAPP proceedings—that the proposed discovery is necessary in the context of the issues raised by the anti-SLAPP motion and what facts the plaintiff reasonably expects to uncover. (1-800 Contacts, Inc. v. Steinberg, supra, 107 Cal.App.4th at p. 593.) Appellant has failed to demonstrate that the court abused its discretion in refusing to grant a further continuance of the anti-SLAPP motion to allow discovery to proceed in the Sacramento action.
Finally, denial of appellant’s discovery request and request for a continuance would not have constituted reversible error in any event. As we have held, res judicata applied to bar the third through tenth causes of action of the writ petition/complaint. Consequently, these causes of action were legally untenable and the discovery sought by appellant could not have changed that. (See 1-800 Contacts, Inc. v. Steinberg, supra, 107 Cal.App.4th at p. 594.)
III. Attorney Fees
Under section 425.16, subdivision (c), a defendant who prevails on a special motion to strike “shall be entitled to recover his or her attorney’s fees and costs.” Appellant contends the attorney fees award must be reduced to the extent it included time spent on the motion by respondents Jacobs and Simon.
Respondents sought to recover fees of $85,557 for 361 hours of attorney time at an hourly rate of $237.50, including 22.5 hours of Jacobs’s time and 14.25 hours of Simon’s time. The court awarded respondents attorney fees of $31,600 for 200 hours of time reasonably expended on the successful portion of the anti-SLAPP motion at the rate of $158 per hour. In making the award, the court expressly included reasonable hours billed by Jacobs and Simon, stating, “[t]he fact that these two attorneys are also named defendants should not preclude the other defendants from recovering for the hours incurred by these attorneys in support of the special motion to strike.”
Appellant contends that a defendant-attorney who wins an anti-SLAPP motion is not entitled to fees for representing herself, relying upon Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 494 (Taheri). They argue this is particularly true where defendant-attorneys were acting more like clients than attorneys in billing time to “review” paperwork, revise their own declarations, and correspond with colleagues.
“ ‘The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. [Citation.]’ (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448; accord, PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096.) The trial court possesses personal expertise in the value of the legal services rendered in the case before it. (PLCM Group, supra, at p. 1096.) On appeal, a fee award is reviewed for abuse of discretion. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 686.)” (Russell v. Foglio (2008) 160 Cal.App.4th 653, 661.)
As we recently observed in Chacon v. Litke (2010) 181 Cal.App.4th 1234, quoting our Supreme Court in Ketchum v. Moses (2001) 24 Cal.4th 1122: “ ‘The “ ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’ ” [Citation.]’ (Ketchum v. Moses, at p. 1132...)” (Chacon v. Litke, at p. 1259.)
The reduced fee award reflected the court’s conclusion that the hours claimed by respondents for many tasks appeared to be overstated, some of the tasks were not sufficiently related to the special motion to strike, and the descriptions of work performed were in many cases “cryptic or conclusory.” The court also reduced the hours by those reasonably attributable to the unsuccessful parts of the motion. Consequently, we may assume, and the court’s statement supports, that the court reduced the hours claimed for Jacobs and Simon to the reasonable hours they spent representing the Office of the Attorney General and other defendants, even if that representation overlapped with their own interests. The question presented then, is whether other respondents (not including Jacobs and Simon) may recover attorney fees for work performed on an anti-SLAPP motion by attorneys who are also named defendants in the lawsuit. We conclude that in the circumstances presented here, they may.
Public entities and agencies are eligible for attorney fee awards under the anti-SLAPP statute. (See Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 194 [fee awards to government agencies prevailing on anti-SLAPP motions]; Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 3d ed. 2010) § 2.26.) Although the California Attorney General, suing on behalf of the People, is not entitled to attorney fees under section 1021.5 because the Attorney General is already charged with enforcing state law (see People ex rel. Brown v. Tehama County Bd. of Supervisors (2007) 149 Cal.App.4th 422, 450), nothing precludes such an attorney fee award in the context of an anti-SLAPP motion.
In Trope v. Katz (1995) 11 Cal.4th 274, 292, our Supreme Court held that a law firm suing in propia persona to recover unpaid fees could not recover fees for that litigation because it represented itself. In Taheri, supra, 160 Cal.App.4th 482, the Court of Appeal denied fees to a defendant-attorney who successfully litigated an anti-SLAPP motion on his own behalf. The court reasoned: “Since Trope, the Supreme Court and other courts have made clear that Trope did not preclude the recovery of attorney fees in other circumstances where the litigant did not actually incur fees, such as for work performed by in-house counsel, pro bono work, and the like. But a necessary predicate for obtaining fees is the existence of an attorney-client relationship. (See PLCM Group, Inc. v. Drexler[, supra, ] 22 Cal.4th 1084, 1092 [‘by definition, the term “attorney fees” implies the existence of an attorney-client relationship, i.e., a party receiving professional services from a lawyer’]; Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 524 (Ramona Unified) [‘[w]here an attorney-client relationship exists, the courts uniformly allow for the recovery of attorney fees under Civil Code section 1717’].)
“The same principle applies to attorney fees under the anti-SLAPP statute. (Ramona Unified, supra, 135 Cal.App.4th at p. 524 [‘[c]ases that have allowed the recovery of attorney fees under the anti-SLAPP statute are similarly marked by the existence of an attorney-client relationship’]; see also Dowling v. Zimmerman [(2001]) 85 Cal.App.4th [1400, ] 1425.) In short, ‘the commonly understood definition of attorney fees applies with equal force to section 425.16 and a prevailing defendant is entitled to recover attorney fees if represented by counsel.’ (Ramona Unified, supra, 135 Cal.App.4th at p. 524.) Under Trope and its progeny, it necessarily follows that a party, whether or not he is an attorney, who is not represented by counsel and who litigates an anti-SLAPP motion on his own behalf may not recover attorney fees under the statute.” (Tahari, supra, 160 Cal.App.4th at p. 494.)
Here, the court found that Simon and Jacobs were representing respondent Office of the Attorney General and other respondents in the action. The circumstances are akin to those in Ramona Unified, supra, 135 Cal.App.4th 510, in which the court upheld an attorney fee award to a defendant-attorney under the anti-SLAPP statute because she had an attorney-client relationship with her nonattorney codefendants. (Id. at pp. 523-524;Pearl, Cal. Attorney Fee Awards, supra, § 2.20, p. 41.) Observing that the Supreme Court had itself recognized the centrality of the existence of an attorney-client relationship to the attorney fee issue in PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at page 1092, the appellate court in Ramona Unified rejected the same argument made here, that insofar as the award encompassed fees for the time spent by a named defendant-attorney assisting in litigating the anti-SLAPP motion, it was erroneous under Trope v. Katz, supra, 11 Cal.4th 274. (Ramona Unified, at pp. 523-524.) The Court of Appeal reasoned: “Where an attorney-client relationship exists, the courts uniformly allow for the recovery of attorney fees under Civil Code section 1717. (PLCM [Group, Inc. v. Drexler], supra, 22 Cal.4th at p. 1093 [party represented by in-house lawyers]; Mix v. Tumanjan Development Corp. (2002) 102 Cal.App.4th 1318, 1321 [successful pro per litigant can recover attorney fees under Civil Code section 1717 for legal services of assisting counsel even though they did not appear as attorneys of record]; Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212, 220 [attorney represented by other members of his or her own law firm entitled to recover contractual attorney fees].) [¶] Cases that have allowed the recovery of attorney fees under the anti-SLAPP statute are similarly marked by the existence of an attorney-client relationship. [Citations.]” (Ramona Unified, at p. 524.) As in Ramona Unified, the evidence here supports the determination that Simon and Jacobs were assisting Deputy Attorney General Jeffrey R. Vincent, the lead attorney for defendants, in connection with the anti-SLAPP motion, and that they rendered assistance to defendants Bennett and McCort as well. Because an attorney-client relationship existed between the prevailing defendants and Jacobs and Simon, Trope v. Katz, supra, 11 Cal.4th 274, does not preclude the award of attorney fees merely because Simon and Jacobs were codefendants with the clients to whom they provided legal assistance. (Ramona Unified, at pp. 524-525.)
The court did not abuse its discretion in awarding attorney fees for work performed by respondents Jacobs and Simon.
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal.
We concur: Haerle, J., Lambden, J.
A124196 & A124931, Soderling v. Office of the Attorney General
“FOR GOOD CAUSE SHOWN AND AFTER RECEIPT OF THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL’S MANDATE, it is hereby ordered that pursuant to the provisions of Penal Code section 851.8, subdivisions (b) and (c) you:
“1. The Department of Justice, Bureau of Criminal Identification And Information, destroy all records of defendant Eric M. Soderling’s June, 1987 arrest and/or conviction.
“2. Because the Department of Justice was the arresting agency, you further destroy all records of the arrest.
“3. The Department of Justice request the destruction of any records of the arrest which they have given to any local, state, or federal agency, person or entity.”
As the Fourth Appellate District stated in granting the writ and overturning the order vacating the initial sealing order, “The right of the prosecution to appeal is limited by statute, and even an act in excess of the trial court’s jurisdiction does not expand that right. [Citation.] As Witkin correctly observes, ‘[A]cts merely in excess of jurisdiction, by a court having jurisdiction of the subject matter and parties, should not be subject to collateral attack unless exceptional circumstances precluded an earlier and more appropriate attack.’ [Citations.]” (Soderling v. Superior Court, supra, G027337, pp. 14-15.) The People may not here collaterally attack the determination of the Fourth Appellate District as to the validity of the sealing order. Whether the order may support a contempt finding is a different question, which we address herein.