Unreported / Non-Citable
Background
This is the third appeal between these parties arising from an explosion at a restaurant. The Perry Law Firm had long represented the restaurant's owners, and Daniel Escamilla had an intermittent working relationship with them. After the explosion, Escamilla attempted to take over the owners' media and legal response, prompting Michael Perry to accuse him of the unauthorized practice of law. Escamilla sued Perry and the Perry Firm for slander, and they cross-complained for intentional interference with economic relations. The trial court granted Escamilla's anti-SLAPP motion dismissing the cross-complaint, a ruling a different panel affirmed in Perry I.
Escamilla then sued Perry, Christopher Hoo, Larry Roberts, and the Perry Firm for malicious prosecution and abuse of process—a SLAPPback action under section 425.18. The abuse of process claim was based on a subpoena duces tecum the defendants served on the State Bar of California seeking records about Escamilla's licensure and disciplinary history. The defendants filed their own anti-SLAPP motion. In Perry II, this court held the motion was untimely as to Perry, Roberts, and the Perry Firm but remanded for the trial court to decide whether to accept the late filing. On remand, the trial court exercised its discretion to accept the late motion and struck the abuse of process claim. Escamilla appealed.
The Court’s Holding
The Court of Appeal affirmed. First, the court held the trial court properly exercised its discretion to consider the untimely motion. Escamilla argued the abuse of process claim was not a SLAPPback and thus subject to the 60-day deadline in section 425.16. The court disagreed: Escamilla had expressly alleged in his complaint that the entire action was a SLAPPback under section 425.18, so he was estopped from narrowing that designation, and the 120-day deadline applied. The court further held that section 425.18, subdivision (d)(1)(B)—unlike section 425.16, subdivision (f)—does not require the court to impose terms or make findings when accepting a late motion filed within six months of service.
Second, the court rejected Escamilla's argument that the illegality prohibition in section 425.18, subdivision (h) barred the motion. That provision applies only where the cause of action giving rise to the SLAPPback was illegal as a matter of law. Business and Professions Code section 6060.25 prohibits disclosure of protected State Bar information, not the act of seeking it, and the subpoena also sought moral character records that may be disclosed in response to a lawful subpoena. Moreover, a discovery subpoena is not a cause of action, so the illegality bar did not apply.
Third, the court held Escamilla failed to show a probability of prevailing on the abuse of process claim. To succeed, a plaintiff must show the defendant contemplated an ulterior motive and committed a willful act not proper in the regular conduct of proceedings. The fact that the subpoena was quashed as overbroad did not establish an improper purpose: the subpoena had a legitimate objective—obtaining evidence for the truth defense to Escamilla's slander claim by showing he practiced law without a license. Escamilla presented no prima facie evidence of an ulterior motive, so the court affirmed the order striking the claim.
Key Takeaways
- A party who expressly alleges that an entire action is a SLAPPback under section 425.18 is estopped from later claiming a shorter filing deadline applies to specific claims.
- Section 425.18 does not require the trial court to impose terms or make findings when accepting a late anti-SLAPP motion filed within six months of service.
- The illegality prohibition in section 425.18, subdivision (h), applies only where the underlying cause of action was illegal as a matter of law; a discovery subpoena is not a cause of action.
- A subpoena quashed as overbroad does not, by itself, establish the ulterior motive required for an abuse of process claim where the subpoena had a legitimate objective.
Why It Matters
This decision reinforces the procedural distinction between ordinary anti-SLAPP motions under section 425.16 and SLAPPback motions under section 425.18, confirming that a party cannot designate an entire action as a SLAPPback and later narrow that designation to impose a shorter deadline. It also confirms that the illegality prohibition is narrow, applying only where the underlying cause of action itself was illegal—not where a party engaged in allegedly improper litigation conduct.
The abuse of process analysis clarifies the line between overbroad discovery and misuse of process. A subpoena quashed as overbroad does not alone show an ulterior motive, particularly when the subpoena sought information relevant to a legitimate defense such as truth in a defamation action.