1

Filed 1/5/17

IN THE SUPREME COURT OF CALIFORNIA

PATRICIA J. BARRY, )

)

Plaintiff and Appellant, )

) S214058

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., subds. (b)(1) & (c)(1).) In this case, the trial court ruled that plaintiff had 

failed to show a probability of prevailing because, among other reasons, the court 

lacked subject matter jurisdiction over plaintiff‟s claims. The question presented 

is whether a court that lacks subject matter jurisdiction over a claim may grant a 

special motion to strike 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 provision 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 motions 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 decides 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 demonstrated a probability of 

prevailing on the claim.‟ ” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 

811, 819-820; 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 evidence 

favorable to the plaintiff [citation] and evaluate[s] the defendant‟s evidence only 
3

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‟ and drain „his 

or her resources,‟ ” the 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).) 

Once 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 Attorney 

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 actual suspension from the practice of law. The 

State Bar Court entered an order approving the recommended discipline.

Despite having agreed to the 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 asserted, among 

other things, that the stipulation was false and that she had entered into it due to 

financial hardship. This court denied Barry‟s petition for writ of review and 

imposed the recommended discipline.
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 dismissing 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 demurred to the complaint and filed a special motion to 

strike the complaint under the anti-SLAPP 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 against Barry and recommending to 

this court that she be disciplined, and thus arose from protected petitioning 

activity. (See Kibler v. Northern Inyo County Local Hospital 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 prevailing 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 jurisdiction 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 conclusions that the 

court lacked subject matter jurisdiction over her claims or that the claims arose 

from protected activity. Rather, 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 the judgment of the trial court. The 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 evaluates 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 Medical, [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 seeking 

injunctive relief in the form of institutional reforms. Because neither party has 

contested the trial court‟s characterization 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 within 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 trial 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. Workers’ Comp. Appeals Bd. (2015) 62 Cal.4th 152, 157.) The 

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 there is a probability that the plaintiff will prevail on 

the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) To evaluate the probability 

that the plaintiff will prevail, the statute permits the court to “consider the 

pleadings, and supporting and opposing 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 ended “ „ “early and 

without great cost to the SLAPP target.” ‟ ” (Varian Medical, supra, 35 Cal.4th at 

p. 192.)
7

Plaintiff 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 limitations].) The 

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.5th 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 remedy she seeks.

Thus, while a ruling on an anti-SLAPP 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 basis 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 Assn., 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‟s 
8

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 bypass 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. The 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 for 

preliminary injunction or motion to disqualify counsel, for example, “an 

anti-SLAPP motion goes „to the merits of the issues 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. 

(Ibid.) We had no occasion in Varian Medical to consider whether the antiSLAPP statute permits a court to strike a complaint on a non-merits basis, such as 

lack of subject matter jurisdiction. The Court of Appeal erred in relying on Varian

Medical as authority “for a point that was not 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.

Plaintiff 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 costs. 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 have the power to answer another type of 

question. It is, for example, 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 attorneys‟ 

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 

defendant for the undue burden of defending against the non-meritorious claim.

Plaintiff 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 1983 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 fees 
11

or costs may be imposed even where the court proves to be without subject matter 

jurisdiction.” (Branson, at p. 293, fn. 10.) The federal decisions on which 

plaintiff relies thus turn on the nature of the particular statute or statutes involved. 

The cases do not stand for the proposition that lack of subject matter jurisdiction 

categorically precludes a court from awarding attorney‟s fees and costs.

Relying 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 matter jurisdiction, a defendant cannot “prevail” within the 

meaning 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., Citizens 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 that have prevailed

“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 motion, 

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 antiSLAPP‟s fee-shifting provision is consistent 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. Moses (2001) 24 Cal.4th 1122, 1131.) 
12

Finally, plaintiff argues that the correct vehicle for raising a jurisdictional 

challenge is a demurrer, rather than a special motion to strike. But as we have 

recognized, a demurrer is not the only mechanism for raising a challenge to a court‟s 

subject matter jurisdiction. (See Greener v. Workers’ 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 judgment on the pleadings; motion for summary judgment; or in an 

answer” (citations 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 trial 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 Medical, 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 requires a court 

to hear the special 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 plaintiffs‟ 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, 

1055, 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 protections 
13

would be lost if we were to adopt plaintiff‟s proposed rule requiring all jurisdictional 

challenges to be resolved on demurrer, rather 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. Because the court 

has the power to resolve the anti-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.

KRUGER, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, 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 Appeal

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 Appellant.

Joseph Starr Babcock, Lawrence C. Yee, Thomas A. Miller, Danielle Adoracion 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