This article originally appeared in the Daily Journal on May 8, 2017.

The California Supreme Court probably does not get many opportunities to wrestle with ancient Greek paradoxes. It has plenty to handle with contemporary conundrums, such as those arising under California’s anti-SLAPP statute. But in its recent decision Barry v. State Bar of California, 2 Cal. 5th 318 (2017), the court had occasion to do both.

Consider what has been called the “Paradox of the Court.” Quite a long while ago, the story goes, Protagoras instructed his student Euathlus in the law. Back then, they did not have the modern form of indentured servitude known as student loans, so Euathlus agreed to pay Protagoras when he won his first case. But Euathlus, like other law school graduates confronted with the harsh realities of the legal marketplace, elected not to practice law after graduation. 

This left Protagoras with no way to collect his tuition, until he hit upon a clever plan — he sued Euathlus. To his way of thinking, he came out ahead no matter how the case was decided. The civil procedures of the time required Euathlus to act as his own attorney. If Euathlus lost the case, then Protagoras had his judgment and could collect. But if Euathlus won the case — his first one — Protagoras should be paid under the contract.

Euathlus took the opposite view. As he saw it, if he won the case, then he would owe Protagoras nothing, because that’s what it means for a defendant to win. But if he lost, he would still owe Protagoras nothing, because he had not yet won his first case.

Protagoras and Euathlus have been battling this out for a few thousand years, but recently Patricia Barry and the California State Bar stepped up to carry on the tradition in the California courts.

Faced with disciplinary charges before the State Bar Court, Barry stipulated to ethical violations and agreed to recommended discipline. After the Bar Court approved the discipline, Barry changed her mind and petitioned the California Supreme Court to set aside the stipulations and reverse the discipline. The court declined.

Undeterred, Barry filed suit in superior court, asking it to set the discipline aside or at least grant her a jury trial on the bar charges. At this point, she came up against California’s anti-SLAPP statute, Code of Civil Procedure Section 425.16. This provides a special motion to strike in cases designated Strategic Lawsuits Against Public Participation. Actions attacking proceedings in a public tribunal such as the Bar Court easily satisfy the public participation criterion. Such suits must be dismissed at an early stage unless plaintiff can establish there is a probability she will prevail.

The trial court easily found that Barry had no probability of prevailing, because it lacked subject matter jurisdiction — exclusive jurisdiction over attorney discipline matters resides in the California Supreme Court. It granted the bar’s special motion to strike. And the anti-SLAPP statute awards a successful defendant its attorneys’ fees, which the trial court duly imposed on Barry.

Barry appealed the fee award. Representing herself, Barry followed in Euathlus’s footsteps. She convinced the court that, paradoxically, she had to win because she had been destined to lose. Specifically, the appellate court held that the trial court’s lack of subject matter jurisdiction — the very reason it had granted the anti-SLAPP motion — precluded it from ruling on the bar’s anti-SLAPP motion. Taking that result to its logical conclusion, the Court of Appeal held that because the trial court had no jurisdiction to rule on the anti-SLAPP motion, it also lacked jurisdiction to award attorneys’ fees under the anti-SLAPP statute. So Barry won because she had to lose.

But the solution to every paradox has a flip side, as the bar convinced the California Supreme Court. Like Protagoras before it, the bar maintained that Barry inevitably owed it money. The court agreed. It took note of the long-standing principle that a court necessarily has the jurisdiction to determine its own jurisdiction. It if did not, how could it ever determine that it did not have jurisdiction? And that narrow sliver of jurisdiction is enough, it held, to empower a court to decide on an anti-SLAPP motion that plaintiff would inevitably lose on the jurisdiction question, and to award attorneys’ fees against plaintiff for bringing an action inevitably decided against her. So the Supreme Court reversed the Court of Appeal and reinstated the trial court’s fee award against Barry.

It’s difficult to fault the Supreme Court for winding up where it did. As a matter of pure logic, both the Court of Appeal’s and the Supreme Court’s resolution might be defended. But when it comes down to the mundane task of making the court system work, a result that allows a court to resolve the matter before it quickly and effectively has a lot going for it, even if there is a defensible symmetrical counterargument. In any event, courts are arranged hierarchically, unlike schools of philosophy, precisely so that difficult questions can be decided once and for all, allowing the courts to get about their business.

An interesting footnote is that the original trial court fee award against Barry was just $2,575.04, to which can now be added the bar’s fee claim for defending the order on appeal. Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi, 141 Cal. App. 4th 15 (2006). This could amount to a large fee bill; litigating all the way to the Supreme Court is seldom an inexpensive exercise. There was little upside in all this for Barry, because successful plaintiffs are generally not entitled to anti-SLAPP fees, and pro pers are not entitled to fee awards. Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC, 230 Cal. App. 4th 244 (2014). So strictly on a dollars and cents basis, this does not seem to have been a fight worth pursuing. But Protagoras and Euathlus would probably agree that fighting over principles can sometimes be as important as fighting over money.

Charles Kagay is of counsel with of the California Appellate Law Group LLP*, an appellate boutique based in San Francisco. He has decades of experience handling appeals that involve complex or novel legal questions and is certified by the State Bar as a California appellate specialist. Find out more about Charles and the California Appellate Law Group LLP at Appellate Zealots is a bi-monthly column on recent appellate decisions written by the attorneys of the California Appellate Law Group LLP.

*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.

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