Opinion
B154311
Filed May 27, 2004 Certified for Partial Publication Modified June 21, 2004 REVIEW GRANTED October 20, 2004
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part III(C).
Appeal from orders of the Superior Court of Los Angeles County, No. BC247941, Gregory O'Brien, Judge. Reversed with directions.
Ronald C. Stock, in pro. per., for Defendant and Appellant.
Peggy J. Soukup, in pro. per.; Law Offices of Gary L. Tysch and Gary L. Tysch for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Ronald C. Stock, appeals from an order denying his Code of Civil Procedure section 425.16 special motion to strike. The present lawsuit is for abuse of process and malicious prosecution. An underlying lawsuit was dismissed pursuant to section 425.16. Defendant represented the plaintiffs in the underlying lawsuit. This lawsuit followed and defendant filed a special motion to strike. We conclude the special motion to strike in the present lawsuit should have been granted Accordingly, we reverse the order under review.
All further statutory references are to the Code of Civil Procedure.
II. BACKGROUND
Defendant's special motion to strike was directed at the complaint filed by Peggy J. Soukup, plaintiff, alleging abuse of process and malicious prosecution. In an underlying action, Herbert Hafif, Cynthia D. Hafif, Greg K. Hafif (the Hafifs), and the Law Offices of Herbert Hafif (the Hafif firm) sued plaintiff. Defendant was one of the attorneys who represented the Hafifs and the Hafif firm in the underlying action against plaintiff. The underlying lawsuit involved allegations that plaintiff here, Ms. Soukup, a former employee of the Hafif firm, had disclosed to a third party confidential information obtained during her employment. The disclosure was purportedly made in furtherance of a conspiracy to defame the Hafif firm. The underlying lawsuit was dismissed in response to a section 425.16 special motion to strike.
Our colleagues in the Fourth Appellate District, Division Three, affirmed the order granting the special motion to strike. ( Law Offices of Herbert Hafif et al. v. Soukup et al. (April 27, 2000, G020977) [nonpub. opn.].) In an unpublished opinion, the Court of Appeal held: the trial court erred in considering the plaintiffs' subjective motives for bringing the action, but the error was harmless; the allegedly actionable conduct consisted of Ms. Soukup's complaints to the Department of Labor, which statements were within the protective purview of section 425.16; and the plaintiffs failed to meet their burden of establishing a probability of succeeding on their claims against Ms. Soukup. ( Ibid.) The complaint in the present suit alleged that the underlying lawsuit was brought in order to "obtain collateral advantage" so that plaintiff would withdraw a complaint she had made to the United States Department of Labor and not pursue an "ERISA action." Further, it was alleged the underlying lawsuit was brought: to destroy plaintiff's credibility in other disputes; without probable cause; and maliciously.
In response to plaintiff's complaint, defendant filed a special motion to strike. The trial court denied the special motion to strike. The trial court concluded that the special motion to strike procedure did not apply to an attorney representing a party in another lawsuit.
III. DISCUSSION
A. Applicable Legal Principles And Standard of Review
A special motion to strike may be filed in response to "'a meritless suit filed primarily to chill the defendant's exercise of First Amendment rights.'" ( Dove Audio, Inc. v. Rosenfeld, Meyer Susman (1996) 47 Cal.App.4th 777, 783, quoting Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2, disapproved on another point in Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) Enacted in 1992, section 425.16, authorizes a court to summarily dismiss such meritless suits. (Stats. 1992, ch. 726, § 2, pp. 3523-3524.) The purpose of the statute was set forth in section 425.16, subdivision (a) as follows: "The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. . . ."
Under section 425.16, any cause of action against a person "arising from any act . . . in furtherance of the . . . right of petition or free speech . . ." in connection with a public issue must be stricken unless the court finds a "probability" that the plaintiff will prevail on whatever claim is involved. (§ 425.16, subd. (b)(1); Equilon Enterprises, LLC v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 65; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1415.) Section 425.16, subdivision (e) provides: "As used in this section, 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." In order to protect the constitutional rights of petition and free speech, the statute is to be construed broadly. (§ 425.16, subd. (a); Briggs v. Eden Council for Hope Opportunity (1999) 19 Cal.4th 1106, 1119-1121; Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 1175-1176.)
When a special motion to strike is filed, the trial court must consider two components. First, the court must consider whether the moving defendant has sustained its burden of showing that the lawsuit falls within the purview of section 425.16; i.e., arises from protected activity. The moving defendant has the initial burden of establishing a prima facie case that plaintiff's cause of action arises out of actions in the furtherance of the rights of petition or free speech. (§ 425.16, subd. (b)(1); Equilon Enterprises, LLC v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67; Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 721, disapproved on another point in Briggs v. Eden Council for Hope Opportunity, supra, 19 Cal.4th at p. 1123, fn. 10.)
Second, once the defendant meets this burden, the obligation then shifts to the plaintiff to establish a probability that she or he will prevail on the merits. (§ 425.16, subd. (b)(1); Equilon Enterprises, LLC v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 63; Briggs v. Eden Council for Hope Opportunity, supra, 19 Cal.4th at p. 1115.) The moving defendant has no obligation to demonstrate that the plaintiff's subjective intent was to chill the exercise of constitutional speech or petition rights. ( Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89; Equilon Enterprises, LLC v. Consumer Cause, Inc., supra, 29 Cal.4th at pp. 62-64.) Nor must a moving defendant show that the action had the effect of chilling free speech or petition rights. ( Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76.) As to the second step of the special motion to strike decision-making process, the Supreme Court in Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741, described the trial judge's duties as follows: "[I]f a court ruling on [a special motion to strike] concludes the challenged cause of action arises from protected petitioning, it then 'determines whether the plaintiff has demonstrated a probability of prevailing on the claim.' ( Equilon, supra, 29 Cal.4th at p. 67 .) To satisfy this prong, the plaintiff must 'state and substantiate a legally sufficient claim.' ( Rosenthal v. Great Western Fin. Securities [(1996)] 14 Cal.4th [394,] 412 .) '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."' ( Wilson v. Parker, Covert Chidester (2002) 28 Cal.4th 811, 821 .)" (Fn. omitted.) We conduct independent review of the trial court's decision. ( Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1364, disapproved on another point in Equilon Enterprises, LLC v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5; Mission Oaks Ranch, Ltd. v. County of Santa Barbara, supra, 65 Cal.App.4th at p. 721.)
B. The Order Denying The Special Motion To Strike Should Have Been Granted
Plaintiff argues the special motion to strike was correctly denied because the underlying lawsuit did not arise out of an act in furtherance of defendant's petition or free expression rights. (§ 425.16, subd. (b)(1).) We disagree. All of plaintiff's claims arise out of the underlying lawsuit which was dismissed pursuant to section 425.16. Plaintiff was counsel for the Hafifs and the Hafif firm in the underlying lawsuit. As we will explain, the present action arises out of defendant's exercise of free expression rights on behalf of clients, the Hafifs and the Hafif firm.
No doubt the present lawsuit against the Hafifs and the Hafif firm arises out of the exercise of their petition rights. ( Jarrow Formulas v. LaMarche, supra, 31 Cal.4th at pp. 734-735; Navellier v. Sletten, supra, 29 Cal.4th at p. 95.) The issue as to defendant is slightly different. Rather, defendant was not a party in the underlying lawsuit, he is alleged to have been counsel for the Hafifs and the Hafif firm. In Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 152, we discussed the situation where a plaintiff sues both the lawyer and client for litigation related conduct in an underlying lawsuit. We recognized that the application of a section 425.16 special motion to strike a complaint naming an attorney and a client may not be the same. We noted: "As to whether Mr. Kass and the Manning law firm, as the lawyers for Financial and Allstate, had standing to bring the special motion to strike, this issue is resolved by the language of section 425.16 subdivision (b)(1) which states in pertinent part: 'A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike. . . .' (Italics added.) As can be noted, the italicized language requires that the defendant . . . be the individual who is or was being sued for exercise of 'that person['s]' right of petition or free expression." ( Shekhter v. Financial Indemnity Co., supra, 89 Cal.App.4th at p. 152.) In Shekhter, we held that the attorney and his law firm were entitled to specially move to strike pursuant to section 425.16. In Shekhter, in addition to representing several clients, insurance companies, in another lawsuit, the attorney and his law firm exercised free expression rights independent of their representation in the underlying litigation. In Shekhter, we noted that the cross-complaint alleged tort claims based upon contact by the attorney and the law firm with broadcasting outlets and a "'nationally syndicated journalist.'" ( Id. at p. 153.) In Shekhter, we concluded that the lawyer and his law firm were exercising their own free expression rights when communicating with journalists outside of the courtroom. But we did not resolve the question of whether an attorney could secure the benefit of section 425.16 while merely representing a client's interests in litigation.
The present case poses the issue we did not conclusively decide in Shekhter; whether an attorney may rely upon his or her exercise of free expression rights while providing legal representation in an underlying lawsuit as a basis for a special motion to strike in subsequent litigation. Under the facts of the present case, we conclude that defendant can secure the benefit of the special motion to strike remedy. As in Shekhter, our conclusion is premised upon the express language of section 425.16, subdivision (b)(1), which restricts the application of a special motion to strike to a "cause of action against a person arising from any act of that person in furtherance of the person's right of . . . free speech. . . ." (Italics added.) When defendant, acting as an advocate, filed papers and presented arguments in the underlying litigation, his advocacy activities arose out of the exercise of the right of free expression. The constitutional right of free expression arises in a variety of situations. ( Ward v. Rock Against Racism (1989) 491 U.S. 781, 790 [music]; Buckley v. Valeo (1976) 424 U.S. 1, 14 [political contributions]; Doran v. Salem Inn, Inc. (1975) 422 U.S. 922, 932-933 [dancing]; Spence v. State of Washington (1974) 418 U.S. 405, 410-411 [placing an anti-war symbol on an American flag].) The Supreme Court has held that the right of free expression arising in the context of litigation "should be given the widest range compatible with the essential requirement of the fair and orderly administration of justice." ( Pennekamp v. Florida (1946) 328 U.S. 331, 347.) Further, other First Amendment rights including those of free press and assembly exist in the courtroom, albeit they are qualified. ( Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 578 (lead opinion of Burger, C.J. ["Subject to the traditional time, place, and manner restrictions, [citations] streets, sidewalks, and parks are places traditionally open, where First Amendment rights may be exercised, [citation]; a trial courtroom also is a public place where the people generally — and representatives of the media — have a right to be present . . ."]; see State v. Springer-Ertl (S.D. 2000) 610 N.W.2d 768, 774 ["public and the press have fewer speech restrictions than lawyers participating in judicial proceedings"].) Finally, the First Amendment applies to lawyers' communications with clients in determining what challenges to raise inside the courtroom. ( Legal Services Corp. v. Velazquez (2000) 531 U.S. 533, 544, 548 [congressional limitations on issues that may permissibly be raised by legal services lawyers constitutes a "serious and fundamental restriction on advocacy of attorneys" thereby violating the First Amendment].)
We need not decide whether the First Amendment applied to all of defendant's actions as an advocate on behalf of the Hafifs and the Hafif firm. Rather, the question is whether, in the words of section 425.16, subdivision (b)(1), plaintiff's advocacy actions can be categorized as "arising from any act of that person in furtherance of the person's right of . . . free speech. . . ." As noted in the immediately preceding paragraph, subject to restrictions not necessarily present elsewhere, the right of free expression applies to conduct by a lawyer. A lawyer advocates on behalf of a client and against an adversary. The lawyer advocates orally and in writing. All of the courtroom advocacy involves activities in a public place before a governmental body. As noted previously, section 425.16, subdivision (e) states in pertinent part that the term "'act in furtherance of a person's right of . . . free speech'" includes the following: "(1) any written or oral statement or writing made before a . . . judicial proceeding . . .; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of . . . the constitutional right of free speech in connection with a public issue or an issue of public interest." The California Supreme Court has construed this language in section 425.16, subdivision (e) as follows, "'[P]lainly read, section 425.16 encompasses any cause of action against a person arising from any statement or writing made in, or in connection with an issue under consideration or review by, an official proceeding or body.' [Citation.]" ( Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 734 citing Briggs v. Eden Council for Hope Opportunity, supra, 19 Cal.4th at p. 1113.) Defendant's written and oral advocacy on behalf of the Hafifs and the Hafif firm arose from this form of conduct delineated in Briggs.
The foregoing language in Briggs is fully supported by the facts in that case. The defendant in Briggs was described by the Supreme Court thusly, "Defendant Eden Council for Hope and Opportunity . . ., a nonprofit corporation partly funded by city and county grants, counsels tenants and mediates landlord-tenant disputes." ( Briggs v. Eden Council for Hope Opportunity, supra, 19 Cal.4th at p. 1109.) In Briggs, the Supreme Court recognize such when it held: "According to plaintiffs, section 425.16 protects only statements or writings that defend the speaker's or writer's own free speech or petition rights or that are otherwise 'vital to allow citizens to make informed decisions within a government office.' Plaintiffs insist tenant counseling activities like [defendant's] are not protected by section 425.16 because they neither promoted [defendant's] own constitutional right of free speech nor informed the public about possible wrongdoing. [¶] Even assuming, for purposes of argument, that plaintiffs accurately have characterized [defendant's] activities as constituting neither self-interested nor general political speech, we cannot conclude such activities thereby necessarily fall outside the protection of the anti-SLAPP statute. Contrary to plaintiffs' implied suggestion, the statute does not require that a defendant moving to strike under section 425.16 demonstrate that its protected statements or writings were made on its own behalf (rather than, for example, on behalf of its clients or the general public)." ( Briggs v. Eden Council for Hope Opportunity, supra, 19 Cal.4th at p. 1116, italics original and added.)
We acknowledge that the question directly before the Supreme Court in Briggs was whether for purposes of section 425.16 a statement made before or in connection with an issue under consideration in a legally authorized official proceeding must be one of public significance. ( Briggs v. Eden Council for Hope Opportunity, supra, 19 Cal.4th at p. 1109.) The issue here, the availability of the special motion to strike procedure to a lawyer sued for conduct in an underlying lawsuit, is different. But our colleague Presiding Justice Arthur Gilbert has explained the language in Briggs set forth in the immediately preceding paragraph requires that section 425.16 be available to a malicious prosecution defendant who acted as counsel in an underlying lawsuit. ( White v. Lieberman (2002) 103 Cal.App.4th 210, 221.) We are persuaded by Presiding Justice Gilbert's analysis. Further, as we noted in Shekhter v. Financial Indemnity Co., supra, 89 Cal.App.4th at page 153, the special motion to strike was available to a lawyer and a law firm representing clients who exercised free speech rights while speaking to journalists. No sound justification exists for limiting the availability of a section 425.16 special motion to strike to a lawyer speaking only outside of the courtroom to a journalist. This is particularly true because the First Amendment, subject to restrictions not present elsewhere, applies to advocacy conduct in and out of a courtroom. Because defendant demonstrated that the claims against him arose out of the exercise of his own First Amendment free expression rights, his conduct as an advocate while speaking and writing on behalf of the Hafifs and the Hafif firm, he has sustained his initial burden pursuant to section 425.16, subdivision (b)(1) when the statute is broadly construed. Hence, the burden of proof shifted to plaintiff to show the probability she will prevail on her malicious prosecution and legal malpractice claims.
C. The Probability of Prevailing
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D. The Order Denying The Special Motion To Strike Should Have Been Granted
Plaintiff argues that defendant is not entitled to an award of attorney fees pursuant to section 425.16, subdivision (c) because he represented himself on appeal and in the trial court. Section 425.16, subdivision (c) states: "In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5." We agree with plaintiff that defendant may not recover attorney fees for the time he spent working on this matter. But if defendant secured legal assistance from another lawyer, plaintiff may be liable for those fees.
Our analysis in this regard largely parallels that used by the California Supreme Court in Trope v. Katz (1995) 11 Cal.4th 274, 279-282, a decision holding that a lawyer who represented himself in a lawsuit could not recover his attorney fees pursuant to Civil Code section 1717 subdivision (a). As was principally the case in Trope, whether an attorney successfully litigating a special motion to strike in pro se may recover section 425.16, subdivision (c) attorney fees is an issue of statutory interpretation. The pertinent rules of statutory interpretation were specified in Trope as follows: "We begin as always 'with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent.' ( Burden v. Snowden (1992) 2 Cal.4th 556, 562 .) To discover that intent we first look to the words of the statute, giving them their usual and ordinary meaning. ( Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744 ; DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601 .) 'Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.' ( Burden v. Snowden, supra, 2 Cal.4th 556, 562.)" ( Trope v. Katz, supra, 11 Cal.4th at p. 280.) Additionally, in Trope, the Supreme Court relied on the general rule that when a law contains judicially construed terms, it is presumed the Legislature intended those words to have their established legal meanings. (Id. at p. 282; Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 570.)
In Trope, the Supreme Court explained the ordinary meaning of the term "attorney fees" as follows: ". . . Black's Law Dictionary defines the word 'fee' generally as 'A recompense for an official or professional service or a charge or emolument or compensation for a particular act or service. A fixed charge or perquisite charged as recompense for labor; reward, compensation, or wage given to a person for performance of services or something done or to be done.' (Black's Law Dict. (6th ed. 1990) p. 614.) It goes on to define the phrase 'attorney fees' as a 'Charge to client for services performed (e.g. hourly fee, flat fee, contingency fee).' (Ibid.) Similarly, Webster's defines the word 'fee' as 'compensation often in the form of a fixed charge for professional service or for special and requested exercise of talent or of skill.' (Webster's New Internat. Dict., [(3d ed. 1961)] p. 833; see also 5 Oxford English Dict. (2d ed. 1989) p. 797 ['fee' denotes 'a payment,' such as the 'remuneration paid or due to a lawyer, a physician, or (in recent use) any professional man, a director of a public company, etc. for an occasional service'].) Accordingly, the usual and ordinary meaning of the words 'attorney's fees,' both in legal and in general usage, is the consideration that a litigant actually pays or becomes liable to pay in exchange for legal representation. An attorney litigating in propria persona pays no such compensation." ( Trope v. Katz, supra, 11 Cal.4th at p. 280.)
Additionally, in Trope, the Supreme Court examined its own jurisprudence and that of the Courts of Appeal commencing with Carriere v. Minturn (1855) 5 Cal. 435. These decisions consistently held in varying contexts that a lawyer appearing in pro se could not recover attorney fees. In Trope, the Supreme Court noted that California courts had refused to award lawyers appearing in pro se their attorney fees in the context of: mortgage agreements ( Patterson v. Donner (1874) 48 Cal. 369, 380; Bank of Woodland v. Treadwell (1880) 55 Cal. 379, 380); inverse condemnation ( City of Long Beach v. Stern (1929) 206 Cal. 473, 474); and an interpleader action. ( O'Connell v. Zimmerman (1958) 157 Cal.App.2d 330, 336-337.)
Given in part of the foregoing analysis in Trope, the Supreme Court concluded: "These pre-1968 cases are significant for two reasons. First, they support our conclusion that the usual and ordinary meaning of the words 'reasonable attorney's fees' is the consideration that a litigant pays or becomes liable to pay in exchange for legal representation. Second, they demonstrate that the words 'attorney's fees' and 'counsel fees,' whether used in a contract or in a statute, had an established legal meaning at the time the Legislature enacted section 1717. In the absence of some indication either on the face of that statute or in its legislative history that the Legislature intended its words to convey something other than their established legal definition, the presumption is almost irresistible that the Legislature intended them to have that meaning. ( Western States Petroleum Assn. v. Superior Court[, supra,] 9 Cal.4th [at p.] 570; People v. Weidert (1985) 39 Cal.3d 836, 845-846 .)" ( Trope v. Katz, supra, 11 Cal.4th at p. 282.)
Trope is directly pertinent to the issue of whether a pro se lawyer who is a defendant may recover section 425.16, subdivision (c) attorney fees. Trope addressed the state of the law concerning the statutory and contract rights to attorney fees of a pro se litigant who is a lawyer prior to the 1968 adoption of Civil Code section 1717. (Stats. 1968, ch. 266, p. 578, § 1.) The right of a prevailing defendant to section 425.16, subdivision (c) attorney fees was enacted in 1992 when the special motion to strike remedy was first adopted. Nothing of substance changed in terms of a pro se lawyer's right to recover attorney fees between 1968 when Civil Code section 1717 was adopted and 1992 when section 425.16, subdivision (c) was enacted. The logical force of the analysis concerning a pro se attorney's statutory right to recover legal fees in Trope applies equally to the present case. Therefore, in 1992, when the Legislature adopted section 425.16, subdivision (c), the usual and ordinary meaning of the term attorney fees excluded an pro se litigant who was also a lawyer attempting to recoup legal fees. ( Trope v. Katz, supra, 11 Cal.4th at p. 280.) Further, commencing in 1855 in Carriere v. Minturn, supra, 5 Cal. at page 435, California courts had consistently developed a body of jurisprudence that barred a pro se lawyer from recovering attorney fees. ( Trope v. Katz, supra, 11 Cal.4th at pp. 280-282.) Under these circumstances, in the absence of an expressed different intent, it is presumed the Legislature intended that the term attorney fees in section 425.16, subdivision (c) be given this meaning as in Trope. (Id. at p. 282; Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at p. 570.) We have carefully reviewed the committee reports and the Legislative Counsel's Digest prepared in connection with the 1992 adoption of section 425.16, subdivision (c). There is no evidence the Legislature intended to modify the general rule that a pro se litigant who is also a lawyer may not recover attorney fees payable under a statute or a contract.
When originally adopted in 1968, Civil Code section 1717 provided: "In any action on a contract, where such contract specifically provides that attorney's fees and costs, which are incurred to enforce the provisions of such contract, shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to costs and necessary disbursements. Attorney's fees provided by this section shall not be subject to waiver by the parties to any contract which is entered into after the effective date of this section. Any provision in any such contract which provides for a waiver of attorney's fees is void. As used in this section 'prevailing party' means the party in whose final judgment is rendered." (Stats. 1968, ch. 266, p. 578, § 1.)
The Legislative Counsel's Digest for section 425.16 states in relevant part: "This bill would also provide that a cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue, as specified, shall be subject to a special motion to strike, unless the court, after considering the pleadings and supporting and opposing affidavits, determines that there is a probability that the plaintiff will prevail on the claim. This bill would provide that if the court determines that the plaintiff has established a probability that he or she would prevail, neither that determination nor the fact of that determination would be admissible in evidence at any later stage of the case nor would it affect the burden or degree of proof. It would provide for the recovery of attorney's fees and costs by a prevailing defendant on a special motion to strike, and by a prevailing plaintiff if the court finds that the motion was frivolous or solely intended to cause unnecessary delay. The bill would specify that these provisions do not apply to any action brought in the name of the people of the State of California by certain state and local prosecutors, and would require all discovery proceedings to be stayed upon the filing of a notice of this special motion, except as specified. The bill would make legislative findings and declarations." (Legis. Counsel's Dig., Sen. Bill No. 1264, 4 Stats. 1992 (1991-1992 Reg. Sess.) Summary Dig., p. 294.) A Senate Committee on Judiciary report stated: "This bill would also allow a prevailing defendant in any motion to strike such a cause of action to recover his or her attorney fees and costs. . . . . . . . SB 1264 would provide attorney's fees and costs to a prevailing defendant in a motion to strike." (Sen. Com. on Judiciary rep. on Sen. Bill No. 1264 (1991-1992 Reg. Sess.) Feb. 25, 1992, pp. 2, 5.) Other committee reports and analyses contain virtually the same language. (Sen. Rules Com., 3d reading analysis of Sen. Bill No. 1264 (1991-1992 Reg. Sess.) Mar. 13, 1992, p. 2; Assem. Office of Floor Coordinator 3d reading analysis of Sen. Bill No. 1264 (1991-1992 Reg. Sess.) Mar. 26, 1992, p. 1; Sen. Rules Com., 3d reading analysis of Sen. Bill No. 1264 (1991-1992 Reg. Sess.) Mar. 27; 1992, p. 2; Assem. Office of Floor Coordinator 3d reading analysis of Sen. Bill No. 1264 (1991-1992 Reg. Sess.) June 29, 1992, p. 1; Assem. Subcom. on the Admin. of Criminal Justice rep. on Sen. Bill No. 1264 (1991-1992 Reg. Sess.) June 30, 1992, p. 2.) No committee reports state that a pro se defendant who is a lawyer may recover attorney fees.
Now, there is a difference between Civil Code section 1717, subdivision (a) and section 425.16, subdivision (c). In Trope, the Supreme Court explained that Civil Code section 1717, subdivision (a) right to recover attorney fees applies in a case where they are "incurred." The Supreme Court noted: "[B]y its terms [Civil Code] section 1717 applies only to contracts specifically providing that attorney fees 'which are incurred to enforce that contract' shall be awarded to one of the parties or to the prevailing party. (Italics added.) To 'incur' a fee, of course, is to 'become liable' for it (Webster's New Internat. Dict. (3d ed. 1961) p. 1146), i.e., to become obligated to pay it. It follows that an attorney litigating in propria persona cannot be said to 'incur' compensation for his time and his lost business opportunities." ( Trope v. Katz, supra, 11 Cal.4th at p. 280, orig. italics.) The word "incurred" does not appear in section 425.16, subdivision (c). But the omission of the term "incurred" or a synonym in section 425.16, subdivision (c) does not change our conclusion. The common understanding of the language "attorney fees" plus the consistently developed decisional authority as plainly explicated in Trope provide the most logical basis for deducing that the Legislature intended to allow represented defendants who special motions to strike are granted to recover their "legal fees" but no one else. (Id. at pp. 280-282.) It seems unlikely that if the word "incurred" did not appear in Civil Code section 1717, subdivision (a), the Supreme Court would have reached the conclusion that a pro se attorney could recover her or his contractual attorney fees. Such an unlikely conclusion would have contravened the Supreme Court's determination of the "usual and ordinary meaning of the words 'attorney fees'" and the pre-Civil Code section 1717, subdivision (a) jurisprudence which denied fees to pro se litigants who were lawyers. (Id. at pp. 280.) The absence of the word "incurred' in section 425.16, subdivision (c) does not mean the Legislature intended that a pro se litigant such a defendant is entitled to recover his attorney fees.
Civil Code section 1717, subdivision (a) provided in 1995 when Trope was decided and now: "In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. Where a contract provides for attorney's fees, as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract. Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit. Attorney's fees provided for by this section shall not be subject to waiver by the parties to any contract which is entered into after the effective date of this section. Any provision in any such contract which provides for a waiver of attorney's fees is void."
Further, we recognize that post-Trope Court of Appeal decision in other contexts are not entirely consistent. Two decisions by our colleagues in the Division Three of the Fourth Appellate District have held that a pro se litigant who is a lawyer can recover sanctions in the form of attorney fees. ( Laborde v. Aronson (2001) 92 Cal.App.4th 459, 467-469 [§ 128.7 sanctions]; Abandonato v. Coldren (1995) 41 Cal.App.4th 264, 268-269 [former § 128.5 sanctions].) Other decisions have held that attorney fees are unavailable to a self-represented attorney in the discovery sanctions context. ( Kravitz v. Superior Court (2001) 91 Cal.App.4th 1015, 1016-1022 [discovery sanction]; Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1175-1182 [discovery sanction]; see Olsen v. Breeze, Inc. (1996) 48 Cal.App.4th 608, 629 [self-represented attorney's right to § 1021.5 private Attorney General fees is doubtful].) We need not address these potential conflicting decisions. We simply rely on the logic expressed in Trope concerning what the words "attorney fees" mean.
Our analysis is subject to an exception. If defendant was assisted by another lawyer, attorney fees may still be recoverable. In Mix v. Tumanjan Development Corp. (2002) 102 Cal.App.4th 1318, 1321-1326, a pro se litigant who was an attorney retained a law firm to assist him during the litigation. We held that the attorney could not recover Civil Code section 1717, subdivision (a) fees for his own work. But we held that the attorney could recover Civil Code section 1717, subdivision (a) contract attorney fees for services provided to him by the law firm. The same rule applies if defendant received the assistance of another lawyer in the present lawsuit. This issue can be litigated upon issuance of the remittitur as permitted by rule 870.2(c) of the California Rules of Court.
IV. DISPOSITION
The order denying the special motion to strike under Code of Civil Procedure section 425.16 is reversed. Defendant, Ronald C. Stock, is to recover his costs and attorney fees only as specified in the body of this opinion incurred on appeal and in the trial court from plaintiff, Peggy J. Soukup.
The rehearing petition is denied.
We Concur:
ARMSTRONG, J.
MOSK, J.