Case Name: Roeder v. Gardner
Case No.: 16-CV-300375

Defendant Alan Gardner (“Gardner”) moves to strike the complaint (“Complaint”) filed by plaintiff John Roeder (“Roeder”) pursuant to Code of Civil Procedure section 425.18.

Roeder’s request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (d).)

Gardner’s special motion to strike is DENIED. The instant action filed by Roeder against Gardner is commonly referred to as a “SLAPPback,” i.e., a claim for malicious prosecution or abuse of process based on an earlier lawsuit dismissed pursuant to an anti-SLAPP motion. (Code Civ. Proc., § 425.18, subd. (b)(1).) The purpose of such an action is to “seek compensation for damages beyond the attorney’s fees and costs awarded to the defendant who prevails on the special motion to strike under the anti-SLAPP statute.” (Soukop v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 280.) The filing of such an action “does not end the roundelay of special motions to strike under the anti-SLAPP statute,” as the SLAPPback defendant “may in turn file such a motion arguing … that the filing and maintenance of the underlying action that is the basis of the SLAPPback was itself activity protected by the anti-SLAPP statute.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1120.)

SLAPPback claims are subject to an anti-SLAPP motion that is the same as a regular anti-SLAPP motion filed under Code of Civil Procedure section 425.16, barring a few procedural differences. The anti-SLAPP statute provides a summary procedure by which defendants may dispose of “strategic lawsuits against public participation” or “SLAPP” lawsuits, i.e., lawsuits brought “primarily to chill the valid exercise of constitutional rights of freedom of speech and petition for redress of grievances.” (See Code Civ. Proc., § 425.16, subd. (a).) The court’s approach to ruling on a special motion to strike has been summarized thusly:

Section 425.16, subdivision (b)(1) requires the court to engage on a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from the protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue” as defined in the statute. (425.16, subd. (b)(1).) If the court finds such showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers “the pleadings, and supporting and opposing affidavits stating facts upon which the liability of the defense is based.”

(See Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

Here, Gardner satisfies his burden on the first prong of the anti-SLAPP test by demonstrating that Roeder’s claim against him arises out of protected activity. In fact, this is a relatively straightforward issue here because as every malicious prosecution action is predicated on the filing of an earlier civil action or petition, “it is settled that a claim for malicious prosecution is subject to a special motion to strike under [Section 425.16].” (Jarrow Formulas, Inc. LaMarche (2003) 31 Cal.4th 728, 734-735.) Thus, the first prong of the anti-SLAPP analysis is clearly met in this action, a fact which is conceded by Roeder in his opposition. Accordingly, the burden shifts to Roeder to demonstrate a probability of prevailing on the merits of his malicious prosecution claim against Gardner in order to defeat the anti-SLAPP motion. The Court finds that Roeder has done so.

Generally, in order to establish a “probability” of prevailing on the merits, a plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Soukop v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) This standard is the same as that governing a motion for summary judgment in that it is the plaintiff’s burden to make a prima facie showing of facts that would support judgment in plaintiff’s favor. (Taus v. Loftus (2007) 40 Cal.4th 683, 714.) The court may not weigh credibility or comparative strength of evidence; the court considers defendant’s evidence only to determine if it defeats the plaintiff’s showing as a matter of law. (Soukop, supra, 39 Cal.4th at 291.) “In making this assessment it is the court’s responsibility … to accept as true the evidence favoring the plaintiff …. The plaintiff need only establish that his or her claim has ‘minimal merit’ to avoid being stricken as SLAPP.” (Id. [internal quotations and citations omitted].)

The elements necessary to plead and prove a claim for malicious prosecution are: “(1) a lawsuit was commenced by or at the direction of the defendant [which] was pursued to a legal termination in … plaintiff’s [] favor; (2) the prior lawsuit was brought without probable cause; and (3) the prior lawsuit was initiated with malice.” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 216 [internal quotation marks and citations omitted].) In order to meet his burden of demonstrating that he has a probability of prevailing on his claim, Roeder must make the requisite prima facie showing with respect to each of the foregoing elements.

With regard to the first element, the parties do not dispute that the Underlying Action was terminated in Roeder’s favor when it was dismissed as a SLAPP. (See also Soukup, supra, 39 Cal.4th at 292 [underlying action deemed terminated in the malicious prosecution plaintiff’s favor where it was dismissed pursuant to an anti-SLAPP motion]. Thus, the first component of Roeder’s burden has been met.

As for the second element, the Court finds that Roeder has made prima facie showing that the underlying action was brought by Gardner without probable cause. Gardner’s claims in the underlying action were predicated on the settlement agreement entered into between the parties in 2007 and were only legally tenable if Roeder himself was bound by its terms. However, Roeder demonstrates that the agreement, by its express language, did not apply to him, and that Gardner had no facts to support his allegation that Great Oaks was Roeder’s alter ego, thereby binding him to the settlement agreement. Roeder also presents evidence which demonstrates that Great Oaks had “straightforwardly communicated” its unwillingness to release any claims other than its own to Gardener and thus that he was clearly on notice that the scope of the Settlement Agreement was at issue prior to when he assented to its terms. Consequently, Gardner had no probable cause to support his claims for breach of contract and unfair business practices against Roeder at time that he asserted them.

With regard to Gardner’s advice of counsel defense which, if proven, can defeat the malicious prosecution claim (see Jay v. Mahaffrey (2013) 218 Cal.App.4th 1522, 1542), the Court finds that Gardner’s evidentiary showing in support of this defense is insufficient. Gardner may very will still be able to defeat Roeder’s showing that he lacked probable cause for the underlying action based on the advice of counsel defense, but at this juncture he has not done so.

Finally, the Court finds that Roeder has made a prima facie showing that the underlying action was initiated by Gardner with malice. Because it is rare that there will be a “smoking gun” admission with regards to malice in malicious prosecution cases, the element is typically established “by circumstantial evidence and inferences drawn from evidence.” (Paulus v. Bob Lynch Ford, Inc., supra, 139 Cal.App.4th at 675 [internal citations omitted].) Here, a trier of fact could reasonably infer from Gardner’s repeated efforts to assert claims against Roeder, (despite knowing that the Settlement Agreement did not apply to him) years after the employment and confidential relationships between the two of them and Great Oaks had terminated and his threats to disclose confidential information entirely unrelated to his own claims, that Gardner harbored ill will towards Roeder and desired to harm him by filing the Underlying Action. The conclusion that Gardner instituted the Underlying Action maliciously is further supported by the lack of probable cause for the claims asserted therein and his alleged defamatory conduct towards Roeder.

Lastly, Roeder’s request for sanctions is DENIED. While the motion has been denied and thus favorably disposed of in Roeder’s favor, he has made no argument or showing with regard to whether the motion may be properly characterized as “frivolous” or “solely intended to cause unnecessary delay” within the meaning of Code of Civil Procedure section 128.5.