Lawyer’s Retaliation Suit Survives Motion to Strike

     (CN) – A California attorney successfully appealed the dismissal of his lawsuit accusing the Morgan Hill City Council of retaliating against him for hiring a private investigator to find out if the city manager was having an affair with the city attorney.




     The 6th District Court of Appeals in San Jose vacated an order dismissing Bruce Tichinin’s retaliation suit as a strategic lawsuit against public participation – an action meant to chill a defendant’s free-speech rights.
     Tichinin had been hired by city council member Hedy Chang, who believed city manager J. Edward Tewes and city attorney Helene Leichter were having an affair.
     When Chang made her view known to other city council members, Leichter allegedly threatened to sue her.
Tichinin decided to find out if the romance rumors were true, because he thought Tewes had swayed Leichter to reject a development project proposed by another of Tichinin’s clients.
     Tichinin hired Mark Bell to trail Tewes at a hotel in Huntington Beach, where Tewes was staying for a conference. But Tewes noticed that someone was following him and grew alarmed, thinking he had a stalker. He appointed a city council subcommittee to investigate the surveillance.
     Tichinin denied involvement, but later admitted to having hired Bell and apologized, explaining his cover-up as a reaction to being caught “flat-footed.”
     “(I) feared that giving no answer would tend to compromise the confidentiality of the investigation, the confidentiality of the client that I had done it on behalf of, and so I misrepresented,” he told the committee. He claimed he also feared that the city would retaliate if he told the truth.
     The city council condemned Tichinin’s actions and called for his immediate resignation from the Morgan Hill Urban Limit Line Subcommittee.
     Tichinin filed a retaliation suit, and the city countered with an anti-SLAPP motion, which the trial court granted.
     On appeal, Tichinin argued that his right to hire an investigator is protected by the First Amendment, and that he was penalized for exercising that right.
     Presiding Justice Rushing said Tichinin’s actions fell under the Supreme Court’s notion of “breathing space,” which casts a broad interpretation of First Amendment protections.
     “[W]e consider it obvious that restricting, enjoining, or penalizing prelitigation investigation could substantially interfere with and thus burden the effective exercise of one’s right to petition,” Justice Rushing wrote.
     Tichinin’s complaint should have survived the anti-SLAPP motion, the court ruled, because he adequately argued that hiring an investigator was protected by the First Amendment, and that the city’s response had the effect of stifling similar investigations.

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