Court of Appeal, Second District, Division 3, California

“ Furthermore, an examination of the history of the underlying litigation reveals that the instant action is consistent with a pattern of conduct by the Church to employ every means, regardless of merit, to frustrate or undermine Wollersheim's petition activity. When a party to a lawsuit engages in a course of oppressive litigation conduct designed to discourage the opponents' right to utilize the courts to seek legal redress, the trial court may properly apply section 425.16. ”

“ The Church argues that “The legislature was especially concerned by the threat to the exercise of constitutional rights posed by a complaint demanding costly damages, which is likely to be a tort suit demanding punitive damages. Thus, because of the possibility of punitive damages, a SLAPP suit in tort poses the greatest threat to the exercise of constitutional rights; therefore, it was against these tort suits that the legislature directed its statutory remedy.” Once again the Church's construction of the legislative intent behind section 425.16 is too restrictive. ”

“ In opposition to the Church's “evidence,” Wollersheim submitted substantial admissible evidence that the jury members had no knowledge that the judge's tires were slashed or that his dog had died. There is evidence by declarations of court personnel that they were unaware of any bias on the part of the judge. Terri Reuter declares that she learned of the tire slashing and dog drowning “sometime well after the trial in the Wollersheim case was over.” ”

“ In order to establish the probability of success the Church had to present admissible evidence of judicial bias sufficient to void the judgment in the prior action. Courts applying the former judicial disqualification statute, Code of Civil Procedure section 170, subdivision (a) , held that judgments of a disqualified judge were void. A void judgment is open to attack at any time. ”

“ The Church also argues that Wollersheim's tort action against a private party (the Church) was not a matter of public interest subject to the protection of section 425.16. Subdivision (e) , describing protected activity, refers to three categories; only the category of activity referred to as the “exercise of free speech rights” is subject to the limitation that it be “made in a place open to the public or a public forum in connection with an issue of public interest.” ”

“ When one party to a lawsuit continuously and unsuccessfully uses the litigation process to bludgeon the opponent into submission, those actions must be closely scrutinized for constitutional implications.
In the instant action the Church's actions clearly fall within the ambit of section 425.16. Among its other litigation strategies, the Church has filed two non-meritorious federal court actions as well as this one. [FN5] The Church has filed numerous appeals in state and federal courts and has prolonged Wollersheim's 1980 lawsuit for 15 years. ”

“ Finally, we turn to the issue of the timeliness of the Church's lawsuit to set aside the verdict. An action to void a judgment based on judicial bias is timely if filed at the “ ‘earliest practicable opportunity’ after the disqualifying facts are discovered.” ( Urias v. Harris Farms, Inc., supra, 234 Cal.App.3d at p. 425, 285 Cal.Rptr. 659.) Here the Church also failed in carrying its burden. In its 1986 motion for new trial the Church raised the issue of Judge Swearinger's alleged bias and the possible contamination of the jury by Terri Reuter's unsigned declaration. ”

“ But even if we were to assume that a motion to strike pursuant to section 425.16 were limited to issues of public interest, the motion would apply to this action against Wollersheim, arising from his lawsuit against the Church. Although matters of public interest include legislative and governmental activities, they may also include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals. ”

“ Three days into the trial, the judge says, they moved for his disqualification based on ‘some secret conversation I'd had with someone I'd never heard of.’ They also filed a Section 1983 federal civil rights action against both him and the judge who sat on the case prior to him, says Swearinger, on the theory that by allowing the case to go to trial, the judges were denying the church its civil rights. (Cooley confirms that the Section 1983 action and the disqualification motion were filed.) ”

“ The Church also argues it has been successful in its post trial motion and appellate strategy and therefore, even if the litigation history is considered, it *650 favors the Church. We disagree. The only relief the Church has obtained from all of its lawsuits, petitions for writs of mandate, appeals to the California Court of Appeal and the Ninth Circuit Court of Appeals, the California and the United States Supreme Courts was obtained in the initial state court appeal in 1989 which resulted in a reduction of Wollersheim's judgment. ”

“ All kinds of things were done to intimidate me, and there were a number of unusual occurrences during that trial. My car tires were slashed. My collie drowned in my pool. But there was nothing overtly threatening, and I didn't pay any attention to the funny stuff.’ ” (Horne, The Two Faces of Scientology (July/Aug. 1992) Am.Law. p. 77.)
Upon information and belief, the Church alleged that the judge described these incidents to court personnel during the trial and that court personnel revealed them to the jurors, “resulting in a jury as biased as the judge.” ”

“ Wollersheim is entitled to an award of attorney fees on appeal. Wollersheim has asked this court to award him attorney fees on this appeal. Subdivision (c) of section 425.16 provides for an award of attorney fees to the defendant who successfully brings a motion to strike.
“A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise. ( Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927-929, 275 Cal.Rptr. 187, 800 P.2d 543 [ ] ; Grade-Way Construction Co. v. Golden Eagle Ins. Co. ”

“ Pankow (1993) 16 Cal.App.4th 931, 939-940, 20 Cal.Rptr.2d 841, and cases cited therein.)
Section 170.1, subdivision (a) (6) provides for the disqualification of a judge if “For any reason ... (B) the judge believes there is a substantial doubt as to his or her capacity to be impartial, or (C) a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. Bias or prejudice towards a lawyer in the proceeding may be grounds for disqualification.” ”

“ SLAPP suits have been defined as “... ‘civil lawsuits ... that are aimed at preventing citizens from exercising their political rights or punishing those who have done so.’ (Canan & Pring, Strategic Lawsuits Against Public Participation (1988) 35 Social Problems 506.) ”