Mina Litinsky appealed from an order striking her claims against respondent Jayne Kaplan under Code of Civil Procedure section 425.16 (the anti-SLAPP statute).1 Litinsky was the defendant in a prior lawsuit in which Kaplan, an attorney, represented the plaintiff.
Following the dismissal of that lawsuit, Litinsky sued Kaplan for malicious prosecution and intentional infliction of emotional distress, along with similar claims against Kaplan’s former client and others.
Kaplan filed a motion to strike the two claims against her under section 425.16. The motion was based on the grounds that: (1) Litinsky’s claims against her arose from a prior lawsuit, which is petitioning activity that is protected under section 425.16, subdivision (e); and (2) Litinsky could not establish a probability of success on her claims. Kaplan argued that Litinsky’s claim for intentional infliction of emotional distress was barred by the litigation privilege under Civil Code section 47. With respect to Litinsky’s malicious prosecution claim, Kaplan argued that: (1) Harutyunov’s voluntary dismissal of the prior action was not a favorable termination on the merits; (2) Kaplan had probable cause to file and prosecute the prior action; and (3) Kaplan did not act with malice.
Section 425.16 provides for a “special motion to strike” when a plaintiff asserts claims against a person “arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).) Such claims must be struck “unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Ibid.)
Thus, ruling on an anti-SLAPP motion involves a two-step procedure. First, the “moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral).) At this stage, the defendant must make a “threshold showing” that the challenged claims arise from protected activity. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)
Second, if the defendant makes such a showing, the “burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.” (Baral, supra, 1 Cal.5th at p. 396.) Without resolving evidentiary conflicts, the court determines “whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.” (Ibid.)
The plaintiff’s showing must be based upon admissible evidence. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) The court “considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)
Thus, the second step of the anti-SLAPP process “establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)
To establish a cause of action for malicious prosecution, “a plaintiff must demonstrate ‘that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].’ ” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871 , quoting Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50.) Our Supreme Court has explained that “[a]lthough the malicious prosecution tort has ancient roots, courts have long recognized that the tort has the potential to impose an undue ‘chilling effect’ on the ordinary citizen’s willingness to report criminal conduct or to bring a civil dispute to court, and, as a consequence, the tort has traditionally been regarded as a disfavored cause of action.” (Sheldon Appel, at p. 872.)
In Sheldon Appel, the court adhered to these “traditional limitations on malicious prosecution recovery” in defining the probable cause element of the tort. (Sheldon Appel, supra, 47 12 Cal.3d at pp. 873–874.) The court explained that analyzing whether probable cause existed for a prior lawsuit “calls on the trial court to make an objective determination of the ‘reasonableness’ of the defendant’s conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable.” (Sheldon Appel, supra, 47 Cal.3d at p. 878.) Whether a claim was legally tenable is determined by applying the same standard that governs whether an appeal is frivolous: The question is “whether any reasonable attorney would have thought the claim tenable.” (Id. at pp. 885–886, citing In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
The court concluded that this standard would best reflect “the important public policy of avoiding the chilling of novel or debatable legal claims.” (Sheldon Appel, at p. 885.)
Additional policies come into play when a malicious prosecution action is brought against a lawyer who prosecuted a prior action. Unless a lawyer discovers that his or her client has provided false information, the lawyer is generally entitled to rely on information from his or her client in filing or prosecuting a lawsuit. (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 223.) That reliance is grounded on the attorney’s duty to act as an advocate on behalf of his or her client. (See Marijanovic v. Gray, York & Duffy (2006) 137 Cal.App.4th 1262, 1272, fn. 5 [noting that “it could well constitute malpractice for an attorney to drop a lawsuit, for which supporting evidence existed, merely because opposing counsel asserted the action was baseless”].)
Whether there was probable cause for a prior lawsuit is ultimately a question of law for the court to decide. (Sheldon Appel, supra, 47 Cal.3d at p. 881.) Where there is a dispute 13 about the defendant’s knowledge and “the existence of probable cause turns on resolution of that dispute,” a jury must resolve the “threshold question of the defendant’s factual knowledge or belief.” (Ibid.) However, “when the state of the defendant’s factual knowledge is resolved or undisputed, it is the court which decides whether such facts constitute probable cause or not.” (Ibid.)
The trial court granted Kaplan’s motion to strike both of the claims against her. Because the claims arose from Kaplan’s prosecution of the prior lawsuit, they met the first requirement under the anti-SLAPP statute to show protected free speech or petitioning activity.
Litinsky was therefore required to show a likelihood that she would succeed on her claims, which she failed to do. Her claim for intentional infliction of emotional distress was precluded by the litigation privilege (Civ. Code, § 47). And her claim for malicious prosecution could not succeed because the evidence showed that Kaplan had probable cause to prosecute the prior lawsuit against Litinsky on behalf of Kaplan’s client.
The California Court of Appeal affirmed. The only issue that Litinsky raises in this appeal is the viability of her malicious prosecution claim. The California Court of Appeal agreed with the trial court that Kaplan had sufficient evidence of the potential merit of her client’s claims to meet the probable cause requirement. The evidence came primarily from her client. While that evidence was contradicted by testimony from the opposing party and some third parties, it was not indisputably false. Faced with the choice of accepting the version of events presented by her client or the version described by the opposing party, Kaplan appropriately opted to continue advocating for her client. She could not be liable for malicious prosecution for making that choice so long as the client’s claims were arguably meritorious.
If you are faced with California’s Anti-SLAPP issues and malicious prosecution, you need a highly skilled and tenacious attorney as your advocate! Contact the Law Office of Robert Rodriguez! (209) 596-4263.
Robert Rodriguez has prosecuted and defended California’s Anti-SLAPP law Section 425.16 of the Code of Civil Procedure, et seq. in the State of California courts. Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.
* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law. Robert Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California. Robert Rodriguez has practiced in the California Court of Appeal.