Hutton v. Hafif
This intentional severe emotional distress infliction lawsuit brought by plaintiff, Terry Hutton, is before us on transfer from the Supreme Court. It arises out of a series of lawsuits involving the Law Offices of Herbert Hafif and Herbert Hafif and Mr. Huttons wife, Terrie Hutton. Mr. Hutton, the plaintiff here, subsequently filed this intentional severe emotional distress infliction action against the Law Offices of Herbert Hafif, Mr. Hafif, Cynthia D. Hafif, and Gregory K. Hafif (collectively, the Hafifs). At issue is the Hafifs Code of Civil Procedure[1]section 425.16 special motion to strike. Retired Judge Gregory OBrien denied the special motion to strike. On appeal, we concluded the motion should have been granted. The Supreme Court granted review and then transferred this matter to us for reconsideration in light of Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley).
Mr. Hutton argues the Hafifs asserted protected conductthe lawsuit they brought against his wifeviolated Business and Professions Code section 6094, subdivision (a), was illegal as a matter of law, and thus did not fall within the purview of section 425.16. We find: the Hafifs made a threshold showing the challenged cause of action arose from protected activity; the Hafifs do not concede and the evidence does not conclusively establish illegality as a matter of law; and Mr. Hutton failed to demonstrate a probability of prevailing on his intentional severe emotional distress infliction claim. Therefore, the Hafifs special motion to strike should have been granted. Court reverse Retired Judge OBriens order denying the special motion to strike. Upon issuance of the remittitur, the special motion to strike is to be granted and any issue concerning attorneys fees is to be pursued in compliance with section 425.16, subdivision (c) and California Rules of Court, rule 3.1702(c).
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