Case Number: BC542088    Hearing Date: August 28, 2014    Dept: 56

Case Name: Leonard, et al. v. Simon
Case No.: BC542088
Motion: Anti-SLAPP Motion

Tentative Ruling: Motion is granted.

Plaintiffs Mark and Scott Leonard filed this action against Defendant Mark Simon for malicious prosecution. Defendant moves to strike the complaint pursuant to CCP §425.16, the anti-SLAPP statute.

An anti-SLAPP motion involves a two step process: 1) the defendant must establish that the challenged causes of action arise from protected activity; and 2) if the defendant makes this showing, the burden shifts to the plaintiff to establish a probability of success on the merits. E.g. Navellier v. Sletten (2002) 29 Cal.4th 82, 88.

There is no dispute that the complaint arises from protected activity. Plaintiffs’ complaint is solely for malicious prosecution, and it is well established that this claim falls within the anti-SLAPP statute. Jarrow Formulas v. LaMarche (2003) 31 Cal.4th 728, 735. Because the first prong is established, the burden shifts to Plaintiffs to present admissible evidence that supports a prima facie case in their favor, much like the burden on a motion for summary judgment or directed verdict. CCP §425.16(b)(1); Taus v. Loftus (2007) 40 Cal.4th 683, 714; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.

In order to establish malicious prosecution, a plaintiff must prove that the prior action (1) was commenced by the defendant and was pursued to a legal termination in plaintiff’s favor; (2) was brought without probable cause; and (3) was initiated with malice. Sheldon Appel v. Albert & Oliker (1989) 47 Cal.3d 863, 871.

Favorable Termination –
There is no dispute that Defendant’s earlier action (BC475345) terminated in favor of Plaintiffs. The action was voluntarily dismissed in the face of Plaintiffs’ motion for summary judgment, and Defendant does not dispute that this was a favorable termination.

Lack of Probable Cause –
Probable cause concerns whether the prior action was legally tenable. See Soukup v. Law Offices (2006) 39 Cal.4th 260, 292. This is viewed as an objective standard of whether any reasonable attorney would have thought the claim was tenable. Antounian v. Louis Vuitton (2010) 189 Cal.App.4th 438, 448-49.

Defendant has presented evidence that he relied on advice of counsel after full disclosure of all relevant facts. This is established by Defendant’s own declaration and the declaration of the attorney who represented him in the earlier action, Alexander Kirkpatrick. Both declarations show that Defendant retained Kirkpatrick in good faith, did not withhold any material information from him, and relied upon Kirkpatrick’s advice, judgment and services as an attorney. It is well settled that “proof of reliance on the advice of counsel in good faith after full disclosure of the facts establishes probable cause.” 5 Witkin, Summ. Cal. Law (10th Ed.) Torts §509; Bertero v. Nat’l General (1974) 13 Cal.3d 43, 53.

In opposition, Plaintiffs argue that Defendant withheld material facts from Kirkpatrick, citing examples of allegations or claims which could not be proven in the earlier action. The evidence shows that the parties were involved in a complex breakdown of their businesses; Defendant believed in good faith that his rights had been violated; he retained Kirkpatrick to pursue legal claims; Kirkpatrick was not experienced in this area of the law; and Kirkpatrick made fatal errors in his prosecution of Defendant’s case. Under these circumstances, Defendant’s advice of counsel defense is sound. See Brinkley v. Appleby (1969) 276 Cal.App.2d 244, 247 (“There can be no imputation to a client of his attorney’s misconceived legal analysis so as to void the client’s good faith reliance on his counsel’s advice as providing probable cause.”).

Plaintiffs have failed to meet their burden regarding lack of probable cause.

Malice –
Malice relates to the subjective intent or purpose of the defendant. It can be shown directly, by evidence of ill will or bad motive, or indirectly, by circumstantial evidence. Roger Cleveland Golf v. Krane & Smith (2014) 225 Cal.App.4th 660, 684. Defendant has stated that he did not act with malice in pursuing the earlier action, to either deprive Plaintiffs of the use of property or to force a settlement bearing no relation to Defendant’s claims.

In opposition, Plaintiffs submit evidence of communications in which Defendant’s friend, Brett Moore, sent advice to Defendant; and Defendant’s own statements, in which he claimed to be suing to enforce a buyout agreement in order to get value for his time and investment in his businesses with Plaintiffs. This does not support malice. As discussed earlier, it shows that the parties were involved in a complex breakdown of their businesses; Defendant believed that his rights had been violated; and his attorney Kirkpatrick engaged in a misdirected effort to pursue legal claims. The absence of malice is reinforced by the evidence that Defendant dismissed the claims asserted by Kirkpatrick, retained a new lawyer experienced in this area of the law, and is now asserting more appropriate claims regarding his business interests.

Plaintiffs have failed to meet their burden regarding malice.

Ruling –
The special motion to strike is granted.

Defendant has also moved for recovery of attorney fees and costs pursuant to CCP §425.16(c)(1). This is supported by evidence that Defendant has incurred $7,185 in fees (12 hours to prepare the motion, 4 hours to prepare the reply, and 3 hours to attend the hearing at $375 per hour) and $60 in costs (filing fees). These amounts are reasonable and will be awarded in the total amount of $7,185 as requested.