1

Filed 1/5/17



## IN THE SUPREME COURT OF CALIFORNIA

PATRICIA J. BARRY , ) ) Plaintiff and Appellant, ) ) S 214058
v. ) ) Ct.App. 2/2 B242054 THE STATE BAR OF CALIFORNIA , ) ) Los Angeles County Defendant and Respondent. ) Super. Ct. No. BC452239

________________________________ ____ )

Under California‟s anti

- SLAPP statute , a defendant may bring a special motion to strike a cause of action arising from constitutionally protected speech or petitioning activity. ( Code Civ. Proc. , § 425.16, subd. (b)(1)

. ) Unless the plaintiff establishes a probability of prevailing on the claim, the court must grant the motion and ordinarily must also award the defendant its attorney‟s fees and costs. ( Id. , subd s
. (b)(1) & (c)(1).) In this case, the trial court ruled that p laintiff had failed to show a probability of prevailing because , among other reasons, the court lacked subject matter jurisdiction over plaintiff‟s claims

. T he question presented is whether a court that lacks subject matter jurisdiction over a claim may grant a special motion to strik e the claim under section 425.16 , and thus may award attorney‟s fees and costs to the defendant

. We conclude that the answer to that question is yes, and accordingly reverse the contrary judgment of the Court of Appeal

.2 I. The Legislature enacted the anti

- SLAPP statute in 1992 in response to concerns about “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 .” ( Code Civ. Proc., § 425.16 , subd. (a) .) The statute is designed to deter such lawsuits

— termed “strategic lawsuits against public participation” or “SLAPP suits ”

— in order to “encourage continued participation in matters of public significance” and to ensure “that this participation should not be chilled through abuse of the judicial process.” ( Ibid. ) The statute instructs that its provisions are to be “construed broadly” in service of these goals. ( Ibid. ) The anti

- SLAPP statute‟s core provis ion authorizes defendants to file a special motion to strike “ [a] cause of action against a person arising from ” the petition or speech activities “ of that person

. . . in connection with a public issue .” ( Code Civ. Proc., § 425.16, subd. (b)(1).) Such m otions shall be granted “ unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” ( Ibid. ) The analysis of an anti

- SLAPP motion proceeds in two steps: “ „ First, the court de cides whether the defendant has made a threshold showing that the challenged cause of action is one “ arising from ” protected activity. [Citation.] If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrat ed a probability of prevailing on the claim. ‟ ” ( Oasis West Realty, LLC v. Goldman (201 1) 51 Cal.4th 811, 819

- 8 20 ; see Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67. ) At this second step of the analysis, a trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based” in evaluating the plaintiff‟s probability of success. ( Code Civ. Proc., § 425.16, subd. (b)(2).) The court “ „ “ accept[s] as true the e vidence favorable to the plaintiff [citation] and evaluate[s] the defendant‟s evidence only3

to determine if it has defeated that submitted by the plaintiff as a matter of law. ” ‟ ” ( Oasis West Realty , at p. 820.) “ „ Only a cause of action that satisfies both prongs of the anti

- SLAPP statute

. . . is a SLAPP, subject to being stricken under the statute. ‟ ” ( Ibid

. ) Because SLAPPs “ seek to deplete „the defendant‟ s energy ‟ an d drain „his or her resources , ‟ ” t he anti

- SLAPP statute contains several provisions designed to “limit the costs of defending against such a lawsuit ” and to “ „ “ prevent SLAPPs by ending them early and without great cost to the SLAPP target

. ” ‟ ” ( Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192 ( Varian Medical ) .) O nce a special motion to strike is filed, for example, a court must consider the motion within 30 days (Code Civ. Proc., § 425.16, subd. (f)), and discovery is stayed pending resolution of the motion ( id. , subd. (g)). Subject to certain exceptions not relevant here , a defendant that prevails on a special motion to strike is entitled to attorney‟s fees and costs. ( Id. , subd. (c)(1).) This case arises from State Bar disciplinary proceedings involving A ttorney Patricia J. Barry

. After the State Bar‟s Office of Chief Trial Counsel filed disciplinary charges against her, Barry stipulated to having committed violations of the rules of professional conduct . She further agreed to recommended discipline including a 60

- day a ctual suspension from the practice of law

. The State Bar Court entered a n order approving the recommended discipline

. Despite having agreed to th e State Bar Court‟s recommendation , Barry thereafter filed a petition for writ of review in this court , asking the court to set aside the stipulation and dismiss the disciplinary charges. Barry assert ed, among other things, that the stipulation was false and that she had entered into it due to financial hardshi p. This court denied Barry‟s petition for writ of review and imposed the recommended discip line

.4

After this court denied Barry‟s petition, Barry filed an action in superior
court against the State Bar . Alleging that the State Bar‟s actions were retaliatory and discriminatory, Barry asserted causes of action under a variety of state laws, as well as the due process clause of the Fourteenth Amendment to the United States Constitution. She sought an order vacating the stipulation and dismiss ing the underlying disciplinary charges , or , in the alternative, granting her a jury trial on the underlying disciplinary charges. Barry also sought various reforms of the State Bar. The State Bar both demu rre d to the complaint and filed a special motion to strike the complaint under the anti

- SLA PP statute ( Code Civ. Proc., § 425.16 , subd. (b))

. The trial court granted the State Bar‟s anti

- SLAPP motion

. At the first step of the analysis, the trial court concluded that all of Barry‟s claims concerned the State Bar‟s actions in pursuing charges ag ainst Barry and recommending to this court that she be disciplined , and thus arose from protected petitioning activity. ( S ee Kibler v. Northern Inyo County Local Hosp ital Dist. (2006) 39 Cal.4th 192, 203

. ) At the second step of the analysis, the trial court concluded that Barry had not shown a likelihood of p r evailing on her claims for a variety of reasons, including because a superior court lacks subject matter jurisdiction over attorney discipline matters , which are reserved to the exclusive jurisdict ion of this
court . (See, e.g., Jacobs v. State Bar (1977) 20 Cal.3d 191, 196; Sheller v. Superior Court (2008) 158 Cal.App.4th 1697, 1710.) 1 The court accordingly granted the anti

- SLAPP motion and awarded $2,575.04 in attorney‟s fees to the

1 The trial court also concluded, among other things, that all of Barry‟s state claims were barred by the litigation privilege under Civil Code section 47 , subdivision (b), and that Barry had failed to state a claim for violation of the federal due process clause.5

State Bar as the “prevailing defendant.” ( Code Civ. Proc., § 425.16, subd

. (c)(1)

. ) 2 On appeal, Barry did not challenge the trial court‟ s conclusion s that the court lacked subject matter jurisdiction over her claims or that the claims arose from protected activity. R ather, she argued that because the trial court lacked subject matter jurisdiction over her claims, it also lacked jurisdiction to adjudicate the State Bar‟s anti

- SLAPP motion or to award attorney‟s fees. Agreeing with Barry, the Court of Appeal reversed t he judgment of the trial court. T he Court of Appeal reasoned: “ „ [I] n the absence of subject matter jurisdiction, a trial court has no power “to hear or determine [the] case.” [Citation.]‟ [Citation.] The trial court‟s lack of subject matter jurisdiction in this case precluded it from ruling on the State Bar‟s anti

- SLAPP motion, an adjudication that necessarily involved a determination of the merits of plaintiff‟s claims. „Section 425.16

. . . establishes a procedure where the trial court eva luates the merits of the lawsuit using a
summary
- judgment

- like procedure at an early stage of the litigation.

. . . [¶] [G]ranting a motion to strike under section 425.16 results in the dismissal of a cause of action on the merits

. . . .‟ ( Varian Medic al , [ supra , 35 Cal.4th ] at
pp. 192

- 193

. . . . ) [¶]

. . . [¶] Because the trial court had no jurisdiction to rule on

2 In addition to challenging the recommended discipline in her case, Barry‟s complaint also alleged institutionalized gender bias, cronyism, and corruption at the State Bar, invoking statutory provisions including Civil Code sections 51.9 (sexual harassment in a business or professional relationship) and 52.1 (private right of action to enforce state or federal Constitution or laws) , and s eeking injunctive relief in the form of institutional reforms . Because neither party has contested the trial court‟s cha racterization of Barry‟s complaint, we assume without deciding that the trial court correctly held that all of Barry‟s claims concerned the State Bar‟s actions in pursuing discipline against her, and thus both arose from protected petitioning activity with in the meaning of section 425.16 and fell outside the subject matter jurisdiction of the superior court.6

the anti

- SLAPP motion, it also lacked jurisdiction to award attorney fees under section 425.16, subdivision (c).” We granted the State Bar‟s petition for review

. II. A.

“ „The principle of “subject matter jurisdiction” relates to the inherent authority of the court involved to deal with the case or matter before it.‟ [Citation.] Thus, in the absence of subject matter jurisdiction, a tr ial court has no power „to hear or determine [the] case.‟ ” ( Varian Medical , supra , 35 Cal.4th at
p. 196, quoting Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) As the case comes to us, the primary question presented is whether, as the Court of Appeal concluded, the anti

- SLAPP statute requires a court to make a determination on the merits of the plaintiff‟s claims before granting a special motion to strike

. We begin by considering the language of the statute. (See, e.g., Larkin v. Worker

s ’ Comp

. Appeals Bd

. (2015) 62 Cal.4th 152, 157.) T he anti

- SLAPP statute provides that a cause of action arising from protected activity is subject to a special motion to strike “unless the court determines that the plaintiff has established that th ere is a probability that the plaintiff will prevail on the claim.” ( Code Civ. Proc., § 425.16, subd. (b)(1).) T o evaluate the probability that the plaintiff will prevail, the statute permits the court to “consider the pleadings, and supporting and oppos ing affidavits stating the facts upon which the liability or defense is based.” ( Id. , subd. (b)(2)

. ) Through this “summary

-

judgment

- like procedure,” the statute authorizes the quick dismissal of meritless claims , thereby ensuring that SLAPP suits are end ed “ „ “ early and without great cost to the SLAPP target. ” ‟ ” ( Varian Medical , supra , 35 Cal.4th at
p. 192.)7

Plainti ff contends that a ruling on an anti

- SLAPP motion “goes to the very substance and merits of the lawsuit” in that it “requires the plaintiff to marshal[] her evidence and prove she has a likelihood of prevailing on the merits.” But failure of proof , or lack of substantive merit more generally, is not the only ground for striking a cause of action under Code of Civil Procedure section 425.16

. (See.,
e.g., Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 397

- 399, 405 [cause of action subject to being stricken under the anti

- SLAPP statute on ground that it was barred by the applicable statute of limi tations].) T he pertinent question under the statute is simply whether the plaintiff has established a probability of prevailing on a “claim

. . . alleged to justify a remedy.” ( Baral v. Schnitt (2016) 1 Cal. 5 th 376, 395 .) While lack of substantive merit is one reason a plaintiff might fail to make the requisite showing, lack of subject matter jurisdiction is another. A plaintiff cannot prevail on her claim unless the court has the power to grant the r emedy she seeks

. Thus, while a ruling on an anti

- SLAP P motion may involve a determination of the merits of the plaintiff‟s claim, it may in other cases involve a determination that the plaintiff‟s claim fails for another, non

- merits

- based reason , such as lack of subject matter jurisdiction

. This conclusion accords with the basic purpose underlying the anti

- SLAPP statute: namely, to shield defendants from the undue burden of defending against claims filed not for the purpose of securing judicial redress, but to intimidate or harass on the b asis of the defendant‟s constitutionally protected activity. A claim may fall into this category if it lacks substantive merit, but it may also fall into this category if it is filed in a tribunal that lacks the power to hear it. (Cf. Traditional Cat Ass n., Inc. v. Gilbreath , supra , 118 Cal.App.4th at
p. 399 [“[A] claim which is meritless because it is barred by the statute of limitations will cause just as much intimidation as a claim which is barred because of a constitutional defense.”].) As the State Bar contends, to exempt a plaintiff‟s8

claims from the reach of the anti

- SLAPP statute because they fail for a reason unrelated to their substantive merit would open up new avenues for harassing and retaliatory litigation ; it would permit plaintiffs to byp ass the protections of the anti

- SLAPP statute simply by filing suit in a tribunal that has no power to entertain the claim. In reaching its contrary conclusion, the Court of Appeal relied on excerpts from our Varian Medical opinion in which we described a decision to grant an anti

- SLAPP motion as resulting “ in the dismissal of a cause of action on the
merits .” ( Varian Medical , supra , 35 Cal.4th at p. 193 , italics added.) That reliance was misplaced. Th e issue in Varian Medical was whether the trial court had the power to adjudicate a lawsuit at the very same time that a defendant sought to appeal the denial of an anti

- SLAPP motion that would have ended the lawsuit

. We concluded that the answer was no, because unlike a motion fo r preliminary injunction or motion to disqualify counsel, for example, “an anti

- SLAPP motion goes „ to the merits of the iss ues involved in the main action‟ [citation] to the extent it addresses the „ probability

. . . the plaintiff will prevail on the claim ‟ ( [ Code Civ. Proc., ] § 425.16, subd. (b)(1)). ” ( Varian Medical , supra , at
p. 193.) We observed that it would be inconsistent for the Court of Appeal to consider whether the defendant‟s anti

- SLAPP motion should have been granted, and the complaint stricken, while the trial court simultaneously considered whether judgment should be entered for the plaintiff on the very same complaint. ( I bi d .) We had no occasion in Varian Medical to consi der whether the anti

SLAPP statute permits a court to strike a complaint on a non
- merits basis, such as lack of subject matter jurisdictio n. The Court of Appeal erred in relying on Varian Medical as authority “for a point that was n ot actually raised and resolved ” in that

case. ( Fairbanks v. Superior Court (2009) 46 Cal.4th 56, 64.)9

In sum , ruling on an anti

- SLAPP motion does not necessarily require a ruling on the merits of the plaintiff‟s claims; it may instead involve a determination that the plaintiff has no probability of prevailing because the court lacks the power to entertain the claims in the first place. The Court of Appeal erred in concluding otherwise. B. P laintiff raises several alternative arguments in support of the Court of Appeal‟ s judgment

. None has merit. First, plaintiff argues that if the trial court lacked jurisdiction to adjudicate her claims on the merits, then it must also have lacked jurisdiction to grant the State Bar‟s anti

- SLAPP motion or to award attorney‟s fees and co sts

. In plaintiff‟s view, “[e]ither the Court has subject matter jurisdiction or it does not.” But a court that lacks the power to answer one type of question in a case may nonetheless hav e the power to answer another type of question. It is, for exampl e, a truism that “ [ a ] court has jurisdiction to determine its own jurisdiction, for a basic issue in any case before a tribunal is its power to act, and it must have authority to decide that question in the first instance.” ( Rescue Army v. Municipal Court (1946) 28 Cal.2d 460, 464; accord, Abelleira v. District Court of Appeal , supra , 17 Cal.2d at pp. 302

- 303 ; see also, e.g. , Muthig v. Brant Point Nantucket, Inc. (1st Cir. 1988) 838 F.2d 600, 603 (opn. of Breyer, J. ) .) Lack of subject matter jurisdiction is no bar to determining that a plaintiff has failed to establish a probability of prevailing on her claim because of lack of subject matter jurisdiction

. Nor is lack of subject matter jurisdiction a bar to awarding attorney‟ s fees and costs

. Our courts have held, for example, that a trial court that dismisses a case for lack of subject matter jurisdiction has the power to award costs to the defendant under Code of Civil Procedure section 1032. ( Brown v. Desert Christian Center (2011) 193 Cal.App. 4th 733.) As the court in Brown explained,10

trial courts necessarily have jurisdiction to determine the scope of their own jurisdiction, and may award costs as incidental to the jurisdictional determination. ( Id . at pp. 740

- 741, citing Wells Fargo & Co. v . City etc. of S. F. (1944) 25 Cal.2d 37, 44 .) This conclusion is consistent with the conclusions of federal courts that have held that a court that lacks jurisdiction to determine the merits of an action may nevertheless consider “collateral issues” such as whether the prevailing party should be awarded its litigation expenses or whether sanctions should be imposed for a litigant‟s abuse of the judicial process. ( Cooter & Gell v. Hartmarx Corp. (1990) 496 U.S. 384, 395

- 396; see also Willy v. Coastal Corp

. (1992) 503 U.S. 131 , 139 ; Citizens for a Better Environment v. Steel Co. (7th Cir. 2000) 230 F.3d 923, 926 ( Citizens for a Better Environment ) [ “ [A] court may lack authority to resolve the merits of a claim yet have jurisdiction to award costs and attorn eys‟ fees to the prevailing party

. ” ]

. ) A trial court that strikes a cause of action arising from protected activity on the ground that the court lacks subject matter jurisdiction has the incidental power to require the plaintiff to compensate the defendan t for the undue burden of defending against the non

- meritorious claim.
P laintiff relies on a series of Ninth Circuit decisions that have held that a court that lacks subject matter jurisdiction over a federal civil rights claim under 42 U.S.C. section 198 3 also lacks the power to award attorney‟ s fees under the relevant federal fee

- shifting statute, 42 U.S.C. section 1988. (See Branson v. Nott (9th Cir. 1995) 62 F.3d 287, 292

- 293 ( Branson ) ; accord, Elwood v. Drescher (9th Cir. 2006) 456 F. 3d 943, 948.) Other federal courts, however, have reached a contrary conclusion regarding comparable fee

- shifting statutes. (See U .S. ex rel. Grynberg v. Praxair, Inc. (10th Cir. 2004) 389 F.3d 1038, 1055

- 1058 [noting tension among courts of appeals ]; Citizens for a Better Environment , supra , 230 F.3d at p. 928 [criticizing Branson ].) In any event, as the Ninth Circuit acknowledged in Branson , “there are some circumstances in which attorney‟s fees11

or costs may be imposed even where the court proves to be without subj ect matter jurisdiction.” ( Branson , at p. 293, fn

. 10.) The federal decisions on which plaintiff relies thus turn on the nature of the particular statu te or statutes involved

. The cases do not stand for the proposition that lack of subject matter jurisd iction categorically precludes a court from awarding attorney‟s fees and costs.
R elying on the same set of Ninth Circuit cases, plaintiff next argues that even if a court might otherwise have the power to award fees and costs in the absence of subject matt er jurisdiction, a defendant cannot “prevail” within the meanin g of Code of Civil Procedure section 425.16 , subdivision (c) unless the defendant obtains a favorable judgment on the merits. Plaintiff points to Branson , for example, in which the court held that where “dismissal is mandated by a lack of subject matter jurisdiction, a defendant is not a „prevailing‟ party within the meaning of § 1988.” ( Branson , supra , 62 F.3d at p. 293 .) Whatever the merits of
Branson ‟s holding on this point (cf., e.g., Cit izens for a Better Environment , supra , 230 F.3d at pp. 929

- 930), it is of little relevance here. Unlike 42 U.S.C. section 1988, the anti

- SLAPP statute does not refer to parties that have “prevail [ed] ” in a lawsuit; it refers specifically to defendants tha t have prevail ed

“ on [ the ] special motion to strike .” ( Code Civ. Proc., § 425.16, subd. (c)(1), italics added .) A defendant that successfully moves to strike a plaintiff‟s cause of action , whether on merits or non

- merits grounds, has “ prevailed ” on the m otion, and therefore is entitled to attorney‟s fees and costs under Code of Civil Procedure section 425.16 , subdivision (c). This understanding of the scope of the anti

SLAPP‟s fee

- shifting provision is consi stent with its apparent purpose: namely, compensating the prevailing defendant for the undue burden of defending against litigation designed to chill the exercise of free speech and petition rights

. (See Ketchum v. Mos e s (2001) 24 Cal.4th 1122, 1131.)12

Finally, p laintiff argues that the correct vehicle for raising a jurisdictional challenge is a demurrer, rather than a special motion to strike. But a s we have recognized, a demurrer is not the only mechanism for raising a challenge to a court‟s subject matter jurisdiction. (See Greener v. Worke rs’ Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1036 [ “ A challenge to the subject matter jurisdiction of a court is properly brought by demurrer to the complaint. It may also be raised by a motion to strike ; motion for judgm ent on the pleadings ; motion for s ummary judgment ; or in an

answer ” ( c itations omitted)

. ]

. ) And contrary to plaintiff‟s argument, there is no rigid rule that requires a court to consider a jurisdictional challenge raised in a demurrer before , or in lieu of, considering such a challenge in the context of a special motion to strike under Code of Civil Procedure section 425.16. (Cf. Lin v. City of Pleasanton (2009) 176 Cal.App.4th 408, 426 [rejecting conclusion that anti

- SLAPP motion must be denied when the tr ial court would have sustained demurrer to same cause of action].) Indeed, to adopt such a rule defeat the anti

- SLAPP statute‟s central purpose of preventing “ „ “ SLAPPs by ending them early and without great cost to the SLAPP target

. ” ‟ ” ( Varian Medic al , supra , 35 Cal.4th at p. 192.) To that end, the statute not only provides a mechanism for compensating the defendant for its litigation expenses in Code of Civil Procedure section 425.16, subdivision (c), but it also require s a court to hear the specia l motion to strike within 30 days of filing ( Code Civ. Proc., § 425.16, subd. (f) ) and provides for an automatic stay of discovery pending resolution of the anti

- SLAPP motion ( id. , subd. (g)). In addition, the Courts of Appeal have placed limitations on p laintiffs‟ ability to amend their complaints in order to avoid or frustrate a hearing on an anti

- SLAPP motion

. ( Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 10 55 , citing Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073

- 1074 ; cf. Nguyen

- Lam v. Cao (2009) 171 Cal.App.4th 858, 871 .) These procedural protections13

would be lost if we were to adopt plaintiff‟s proposed rule requiring all jurisdictional challenges to be resolved on demurrer, ra ther than in the context of a special motion to strike

. III. A court that lacks subject matter jurisdiction over a plaintiff‟s claims has the
power to resolve an anti

- SLAPP motion on jurisdictional grounds. B ecause the court has the power to resolve the a nti

- SLAPP motion, it also has the power to award attorney ‟s fees to the defendant that prevails on such a motion. We therefore reverse the judgment of the Court of Appeal

.

K RUGER , J. W E C ONCUR :
C ANTIL - S AKAUYE , C. J. W ERDEGAR , J. C HIN , J. C ORRIGAN , J. L IU , J. C U É LLAR , J.See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Barry v. State Bar of California

__________________________________________________________________________________ Unpublished Opinion Original Ap peal Original Proceeding Review Granted XXX 218 Cal.App.4th 1435 Rehearing Granted

__________________________________________________________________________________ Opinion No. S214058 Date Filed: January 5, 2017

________________________________________ __________________________________________ Court: Superior County: Los Angeles Judge: Deidre H. Hill

__________________________________________________________________________________ Counsel: Patricia J. Barry, in pro. per., for Plaintiff and Appellan t. Joseph Starr Babcock, Lawrence C. Yee , Thomas A. Miller, Danielle A doracion Lee ; Kerr & Wagstaffe , James M. Wagstaffe and Michael von Loewenfeldt for Defendant and Respondent.Counsel who argued in Supreme Court (not intended for publication with opinion):

Patricia J. Barry 634 S. Spring Street, Suite 823 Los Angeles, CA 90014 (213) 995

- 0734
Danielle Adoracion Lee Office of General Counsel State Bar of California 180 Howard Street San Francisco, CA 94105

- 1639 (415) 538

- 2000