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Tide Turns for Targets of SLAPP Lawsuits : Courts: People named in public participation actions are fighting back by charging developers, property owners and others with malicious prosecution.

May 03, 1991|PHILIP HAGER | TIMES LEGAL AFFAIRS WRITER

The Kern farmers find themselves still fighting with the Boswell Co., nine years after the original suit was brought, with the two older farmers now pushing 70. "To this day, that suit has chilled them from getting involved in any political activity ever again," said John M. Means, an attorney for the farmers.

In SLAPP-back actions, people who have been defendants are increasingly returning to court as plaintiffs, filing counter actions for malicious prosecution, civil rights violations and other injuries against the parties who sued them.

"The people who suddenly got hit with these multimillion-dollar lawsuits had never seen or heard of anything like it," said Joseph W. Cotchett, a Burlingame lawyer who represents SLAPP targets. "It wasn't until recently that they realized the true purpose of the suits was just to get environmentalists off the backs of developers. They got indignant and started to file SLAPP-back suits."

"People are fed up with having their constitutional rights abridged and attempts to clobber them financially," observed Phillip S. Berry of Oakland, who as the Sierra Club's vice president for legal affairs has defended the group against several SLAPPs. "At bottom what's involved is the right to free speech, assembly and petition the government for redress of grievances."

The result of this new activity has been some notable victories by SLAPP-back forces:

- In the Kern County case, Jeff Thomson, his father, Jack Thomson, and Ken Wegis retaliated with their own suit after they were SLAPPed with a suit by Boswell that was dismissed. The firm had contended that the farmers' ad, in questioning Boswell's opposition to the canal, had wrongly accused the firm of trying to gain a monopoly on cotton growing in the area. A jury, in the largest SLAPP-back judgment to date, ruled in 1988 that Boswell was liable for $3 million in general damages and $10.5 million in punitive damages. The case is before a state Court of Appeal in Fresno.

- Raymond J. Leonardi, an attorney for a group of plumbing and pipe fitters, was sued for libel by Shell Oil Co. after he raised health questions about a plastic pipe it marketed. Laboratory tests showed the pipe contained cancer-causing substances. Shell's suit was dismissed but Leonardi countersued and won a jury award of $175,000 general damages, $22,000 for lawyers' fees and $5 million in punitive damages. The firm appealed the ruling. Last year, the state Supreme Court refused to hear the case, allowing the verdict to stand.

- Victor Monia, a Santa Clara County business executive who headed a local environmental group, and several others were sued for $40 million by Parnas Corp., a San Francisco developer, during a controversy over a proposed hillside development in Saratoga. The developer alleged libel in a political flier circulated by the environmentalists that tied the firm to allegedly questionable dealings with a local official. The suit was dismissed, then Monia SLAPPed back, winning a $260,000 damage award against the developer for malicious prosecution. The award was upheld in February by a state Court of Appeal.

Professor Pring sees SLAPP-backs as the most effective deterrent to meritless suits that try to silence legitimate political activity. "Hitting people who exercise their rights with a multimillion-dollar lawsuit is turning out to be a mistake--a very big mistake," he said.

Meanwhile, other significant SLAPP-back cases are pending in state trial courts:

- Frederick Sylvester, a professional climber and former movie stuntman, was sued along with some other Lake Tahoe residents for $75 million by the Perini Land & Development Corp. over their opposition to a resort complex. The firm said Sylvester caused delays in the project by inducing other people to back out of an agreement not to oppose the resort in return for the firm's promise to improve water-quality safeguards. Perini then dropped the suit; Sylvester has countersued.

- In a related case, the Sierra Club, which also had been sued by Perini, has filed a SLAPP-back suit against the developer for what the conservationist group claims was an improper attempt to squelch opposition to the project. The club is seeking $10 million in general and special damages and another $70 million in punitive damages.

Attorneys on both sides of such disputes are keeping close watch on the state Supreme Court to see whether the justices decide to review the ruling made by the Court of Appeal in the suit environmentalist Monia brought against Parnas Corp.

The appellate panel upheld a jury finding that Parnas had filed the libel suit without a "reasonable" belief the case was valid. Even relying on its previous lawyer's advice in bringing the suit was no defense against a subsequent charge of malicious prosecution, the court said.

In its bid for review by the state high court, Gavin, who is Parnas' appeals lawyer, argued that a different standard should apply. A malicious prosecution suit should not be allowed unless the underlying suit was "totally devoid of merit."

Also awaited anxiously is further legislative action on Lockyer's proposal to make it more difficult to bring SLAPPs in court. Under the measure, suits against people speaking out on public issues would be barred unless the plaintiff could show there was a "substantial probability" of winning the case.

Former Gov. George Deukmejian vetoed a similar measure last year, saying that judges are already empowered to fine parties who file "frivolous" lawsuits.

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