TERRY JOHNSTON Ph.D, Plaintiff

vs.

ROBIN YEAMANS, et al, Defendants

The above-entitled matter came on for hearing before the Honorable Conrad L. Rushing on June 27, 2000 in Department 17 at which time the court took the matter under submission. Subsequently, the Court requested that the Parties further brief several issues. All papers having been submitted on August 30, 2000, this matter once again stood submitted. Having considered all papers, evidence and oral arguments, the Court orders as follows:

The Defendants' Motion to Strike is GRANTED.

Defendants move specially pursuant to C.C.P. Section 425.16 to Strike the complaint filed by Plaintiff, Johnston, arguing that the instant complaint is a SLAPP-suit. C.C.P. Section 425.16 allows this Court to summarily strike a pleading where the Court Finds, based on evidence presented, that Defendants have made a prima facie showing that the lawsuit arises from the Defendants' exercise of their First Amendment rights of petition or free speech, and the Plaintiff cannot establish a probability that she will prevail on the claims asserted.

A. The Komar Committee Was an Official Proceeding as Contemplated by the Statute.

The first question to be answered by this Court is whether the Defendants' conduct was the type of petition activity the statute intends to protect. This Anti-SLAPP statute applies to causes of action "against a person arising from any act of that person in furtherance of the person's right of petition...in connection with a public issue..."C.C.P. Section 425.16(b) Here, Defendants admittedly undertook a campaign against what they perceived to be abuses in the Family Court and specifically by the Plaintiff in her role as a quasi-judicial officer. This is clearly a matter of public concern.

The Statute defines acts in furtherance of petition activity as "...any written or oral statement or writing made before [or]...in connection with an issue under consideration or review by...an official proceeding authorized by law. C.C.P. Section 425.16(e)(1) & (2) The Defendants' collective activities included letters and complaints to this Court's committee, formed to investigate alleged abuses in the Family Court, and filing of formal complaints with the American Psychological Association ("APA") Plaintiff asserts that the Komar Committee was merely an internal administrative committee, and not an 'official proceeding' as contemplated by the statute. This Court rejects Plaintiff's interpretation, and finds that the Komar Committee was an "official proceeding" under C.C.P. Section 425.16(e)(2). The Committee was formed pursuant to this Court's obligation to appoint appropriate committees to review problems and promote understanding of the administration of justice. California Rule of Court 205(16). The Komar committee, created in January 1999, conducted a thorough review of the alleged problems in the Family division of this Court. The Committee considered, among other things, input from the community through confidential public input sessions, as the Rule of Court allows. At the conclusion of its fact-finding investigation, the Komar Committee, using the detailed factual information gathered over the course of its one year investigation, published a complete report. This report, "Santa Clara County Family Court: A Protocol for Change," articulated substantial modifications in procedures in the administration of the Family Court, including substantial limitation on the future role of the Plaintiff and on her work for the Court. (see Declaration of Robin Yeamans, dated June 6, 2000, Exhibit 1.) Therefore, the Komar Committee was an "official proceeding" as contemplated by C.C.P. Section 425.16(e)(2) and Picton v. Anderson Union Hight School Dist. (1996) 50Cal.App.4th 726

B. The Plaintiff has Failed to Show that She Will Prevail on Her Claims.

Defendants having made their prima facie showing, the burden now shifts to Plaintiff to show that she has a probability of prevailing on her claims. First, it appears, from the evidence, that the formal complaints to the APA are the types of petitions contemplated by C.C. Section 43.8. Although the APA is a voluntary professional organization, its members agree to be bound to its rules and to its disciplinary procedures. Plaintiff was, in fact, "educated" after a formal review of the complaints submitted by the Defendants. Therefore, filing complaints with the APA is privileged under C.C. Section 43.8

Second, Defendants' other activities, including the January 19, 1999 letter from Defendant Yeamans to the Honorable LaDoris Cordell, a member of the Komar Committee, appear to have been submitted either for the Committee's consideration in conjunction with its investigation or in anticipation there of. The constitutional right to petition includes the basic act of seeking administrative action. (see: Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47Cal.App.4th 777) (see also: Declaration of Robin Yeamans, dated June 6, 2000, Exhibit 18) Plaintiff has also failed to show with reasonable probability that Defendant Yeaman's sent the January 29, 2000 letter to anyone but its intended recipient, Judge Cordell. (see Declaration of Susan Reid, dated June 19, 2000; see also: Supplemental Declaration of Robin Yeamans, dated June 22, 2000, and Declaration of Michelle Dimter, dated June 22, 2000) Since all of Defendants' alleged activities are privileged, Plaintiff has failed to establish the probability of prevailing on her claims. Therefore, her complaint against all Defendants is properly stricken in its entirety as a SLAPP-suit.

C. The Legislative Intent of C.C.P. 425.16 Compels That This Motion Be Granted.

Lastly, in light of the Legislature's expressed public policy concerns of protecting first amendment rights, [1] the Court feels compelled to step back from the legal elements of this special motion to strike to see this action for what it truly is.

Plaintiff Johnston, and her associates, served the Court in various capacities over a number of years. In such a capacity, it is undisputed that Ms. Johnston, among others, came under serious attack from a number of dissatisfied litigants, among them, the Defendants to this action. Since these litigants could not pursue Ms. Johnston civilly for her alleged wrong-doing, they resorted to the only means available to them, filing complaints with her professional organization of choice and petitioning the administrative branch of the Court to review what Defendants perceived as an untenable situation overall in the Family Division of the Court. It is in this context that the Presiding Judge formed the Komar Committee, whose findings undeniably impacted Ms. Johnston's future role with the Court. It is clearly no coincidence, and despite her own immunity from civil actions, that Ms. Johnston's filed her complaint less than two weeks after the Komar Committee issued its final report.

In addition to being a right guaranteed by the Constitution, it is of utmost importance to the administration of a Court, to allow the public to freely comment on and/or petition the Court to change a structure or process under the Court's administrative control. While it is a self-evident truth that the strongest advocates of change are those who have been wronged or unjustly burdened by a defect in the system, the right to petition the administrative arm of the Court should in no way be limited to specific litigants in their specific case, as the Plaintiff urges. Any person's right to make such a petition counts among our most precious constitutional protections, which is why a presiding judge is empowered to create committees involving the public under CRC 205. Ms. Johnston seeks to punish the Defendants for their use of their right to petition the Court for change because Defendants' actions, at least in part, were responsible for the changes imposed on the Family Court. If the Court were to allow this action to go forward, it may very well chill future public participation in the Court's system of self-evaluation and administration, which would in turn jeopardize the quality of services the Court provides to the Community. The Legislature stated public policy demand that this action be stricken.

The Court notes that there were multiple objections to evidence. In ruling on the Special Motion to Strike, the court only considered competent and admissible evidence.

IT IS SO ORDERED.

Dated: October 5, 2000

Conrad L. Rushing Judge of the Superior Court

1 [footnote] The Legislature declared its intent in the body of the Statute: "to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To This end, this section shall be constructed broadly." C.C.P. Section 425.16(a)