Sheikh Idrees vs. Blaine Juchau

2017-00215588-CU-NP

Nature of Proceeding: Motion to Strike (SLAPP) (Boutin Jones Inc.)

Filed By: Lerch, Jerome N.

Defendants Boutin Jones, Inc.; Stephen F Boutin; Kevin C. Davis; Eric C. Miller; and Daniel S. Strouder’s (“Boutin Jones Defendants”) special motion to strike the complaint of Sheikh Idrees (“Plaintiff” or “Idrees”) pursuant to Code of Civil Procedure section 425.16 is ruled upon as follows.

Joinder of Blaine Juchau

Defendant Blaine Juchau’s joinder in Boutin Jones Defendants is denied as untimely. Joinders must be filed and served pursuant to the same timelines required by the underlying motion. The joinder was filed and served by mail on May 15, 2018, which does not give proper notice for a hearing on May 31, 2018. (See Code Civ. Proc. § 1005(b) (requiring 16 court days plus 5 calendar days’ notice for mail service).)

Overview

The underlying litigation arose from a business partnership dispute between Anthony Virk and Blaine Juchau, co-owners of Sunmart, Inc. Sunmart owned and operated a gas station and convenience store in Davis, California. Virk also owned and operated his own business, Mass Enterprises.

In December 2011, Virk filed a lawsuit in Yolo County Superior Court against Juchau for allegedly locking him out of the business and claimed defamatory statements by Juchau that Virk had committed fraud and was a thief. Former counsel (also named as defendants in this litigation) was retained by Juchau to defend the action. Former counsel answered the complaint and filed a cross-complaint against Virk related to Virk’s alleged fraudulent conversion of money and inventory from Sunmart and the concealment of that fraud from Juchau.

The cross-complaint alleged two causes of action against Idrees (Plaintiff in this case) for conspiracy and accounting. Family members of Virk, hired by Virk to work at the store, were also named in the conspiracy cause of action.

Plaintiff had been hired by Virk to prepare taxes and payroll for Sunmart. Plaintiff also performed a similar function for Virk’s other company, Mass Enterprises.

The cause of action for conspiracy alleged Plaintiff conspired with Virk by “lending aid and encouragement to Virk,” and that Plaintiff concealed Virk’s fraudulent conduct as “an individual charged with maintaining the financial accounts of records of Sunmart.” The accounting cause of action alleged Plaintiff owed a fiduciary duty to Sunmart as its accountant and Juchau could not determine the true state of Sunmart’s finances.

Plaintiff filed his own cross-complaint against Juchau for breach of contract and sought damages for unpaid work performed on behalf of Sunmart. Plaintiff did not name Virk in his cross-complaint.

Boutin Jones substituted as counsel for Juchau on February 3, 2016. Trial was set for July 18, 2016. On July 15, 2016, Juchau, through Boutin Jones Defendants, dismissed without prejudice Juchau’s cross-complaint against Plaintiff and Virk’s family members. Boutin Jones Defendants allege the dismissal was a strategic decision to focus the trial on Virk.

On August 3, 2016, the jury found in favor of Juchau on his cross-complaint against Virk and found Virk liable for the alleged conversion and for concealing the fraud from Juchau. The jury also found Mass Enterprises, owned and operated by Virk, liable for conspiracy with Virk to commit fraud by concealment or conversion.

In addressing Virk’s complaint against Juchau for defamation, the jury found Juchau’s statements that Virk was “dishonest, a thief, and/or a fraud” to be true and therefore not actionable. The jury found, however, that Juchau breached fiduciary duties owed to Virk.

The jury found in favor of Plaintiff on his own cross-complaint against Juchau for breach of contract, wherein Plaintiff sought damages for unpaid services rendered to Sunmart.

One year after Plaintiff was dismissed from the underlying cross-complaint by Juchau, he filed the instant litigation alleging malicious prosecution and naming as defendants Juchau, Boutin Jones Defendants, and Juchau’s former counsel.

Legal Standard

“The anti-SLAPP statute is aimed at curbing lawsuits brought primarily to chill the valid exercise of constitutional rights of freedom of speech and petition for the redress of grievances.” (City of Alhambra v. D’Ausilio (2011) 193 Cal.App.4th 1301, 1305, citation and additional quotation marks omitted.) In ruling on the motion, the Court follows a two-step analysis. First, the defendant must make a prima facie showing that the plaintiff’s causes of action arise from protected free speech or petition activity within the meaning of Code of Civil Procedure section 425.16. (See Digerati Holdings, LLC v. Young Money Enter., LLC (2011) 194 Cal.App.4th 873, 883-884.) The “principal thrust or gravamen” of the claim determines whether section 425.16 applies. (See Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1279.)

At the same time, however, the Court may strike a portion of a cause of action arising from protected activity while refusing to strike other portions. (See Cho v. Chang (2013) 219 Cal.app.4th 521, 523, 527; accord City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 773-774.) Where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is merely incidental to the unprotected conduct. (See Burrill v. Nair (2013) 217 Cal.App.4th 357, 379-381.)

In deciding whether the defendant has met this initial burden, the Court considers the pleadings, declarations, and matter of which it may take judicial notice. (Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-459.)

In the defendant makes a sufficient showing, the burden then shifts to the plaintiff to show a reasonable probability of prevailing and receiving a judgment in his or her favor. (See ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999, citation omitted.) To meet this responsive burden, the plaintiff must produce admissible evidence supporting inferences that the elements of the cause of action are present. (See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 822; Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1166.) The Court does not weigh evidence that the parties produce or make credibility determinations. (See Midland Pac. Bldg. Corp. v. King (2008) 157 Cal.App.4th 264, 271; Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1346.)

Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech and lacks minimal merit is a SLAPP, subject to being stricken under the statute. (Oasis West Realty, LLC, 51 Cal.4th at 819-820.)

“Malicious prosecution is a disfavored action. [Citations.] This is due to the principles that favor open access to the courts for the redress of grievances. [Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 493.] ‘[T]he elements of the [malicious prosecution] tort have historically been carefully circumscribed so that litigants with potentially valid claims will not be deterred from bringing their claims to court by the prospect of a subsequent malicious prosecution claim.’ [Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872.]” (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 216.)

Analysis

Protected Activity

Plaintiff concedes that Boutin Jones Defendants meet the first step in the Court’s

analysis. (See Oppo. at 8 (“First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. For the purposes of this Motion, this point is conceded by Plaintiff.”).) Therefore, the Court turns to the second step of its analysis.

Probability of Prevailing

The Court next must consider whether Plaintiff demonstrates a probability of prevailing on his malicious prosecution claim. The burden shifts to Plaintiff to show the probability of prevailing on the cause of action for malicious prosecution by demonstrating the complaint is legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by Plaintiff is credited.

Courts must deny an anti-SLAPP motion if “the plaintiff presents evidence establishing a prima facie case which, if believed by the trier of fact, will result in a judgment for the plaintiff.” (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416; see Code Civ. Proc. § 425.16(b)(1).) In addressing the probability of prevailing, the burden is upon the plaintiff to demonstrate a probability of prevailing on the merits of the claim. To satisfy this prong on a malicious prosecution claim, the plaintiff must state and substantiate a legally sufficient claim. (See Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) 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 is credited. (See Jarrow Formulas, Inc. v. La Marche (2003) 31 Cal.4th 728, 741.)

To prevail on a malicious prosecution claim, a plaintiff must show that the underlying action: (1) was initiated by or at the direction of the defendant and was legally terminated in the plaintiff’s favor, (2) was brought without probable cause, and (3) was initiated with malice. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292.) “Continuing an already filed lawsuit without probable cause may also be the basis for a malicious prosecution claim. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1539, citing Zamos, 32 Cal.4th at 969, internal quotation marks omitted.)

Litigation Instituted by Defendants and Terminated in Plaintiff’s Favor

The first element here is not contested with regard to the litigation being instituted by Defendants.

The parties dispute whether the litigation was terminated in Plaintiff’s favor. “‘The basis of the favorable termination element is that resolution of the underlying case must have tended to indicate the malicious prosecution plaintiff’s innocence. [Citations.] When prior proceedings are terminated by means other than a trial, the termination must reflect on the merits of the case and the malicious prosecution plaintiff’s innocence of the misconduct alleged in the underlying lawsuit.’ [HMS Capital, 118 Cal.App.4th at 214.] If the evidence of the circumstances of the termination is conflicted, ‘the determination of the reasons underlying the dismissal is a question of fact.’ [Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1399.]” (Daniels, 182 Cal.App.4th at 217.)

“‘The test is whether or not the termination tends to indicate the innocence of the defendant or simply involves technical, procedural or other reasons that are not inconsistent with the defendant’s guilt.’” (Contemporary Services Corp. v. Staff Pro Inc.

(2007) 152 Cal.App.4th 1043, 1056-1057, quoting Cantu v. Resolution Trust Corp.

(1992) 4 Cal.App.4th 857, 881.)

Plaintiff contends that Boutin Jones Defendants dismissed Plaintiff from the underlying litigation in recognition of the lack of merit of Juchau’s cross-complaint against Plaintiff.

Boutin Jones Defendants allege the underlying cross-complaint against Plaintiff was dismissed as a matter of strategy to (1) preserve any claims that Juchau might still have against Plaintiff; (2) avoid confusing the jury; and (3) to focus the case on the main defendant, Virk.

Given that Plaintiff’s arguments relate to whether the underlying litigation had sufficient probable cause or was dismissed for a lack of merit, the Court will consider those arguments within that section below.

Probable Cause

As to the second element, the standard the Court applies to determine lack of probable cause is an objective standard. Probable cause for the underlying action exists unless no reasonable attorney would have thought the claim tenable. (Sheldon Appel v. Albert

& Oliker (1989) 47 Cal.3d 863, 885-886.)

Whether the plaintiff has established a prima facie case is a question of law. Plaintiff is not required to establish that all causes of action in the underlying litigation lacked probable cause, but only that at least one lacked probable cause. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 55-557.) In deciding the potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant. (Code Civ. Proc. § 425.16(b)(2); Zamos, 32 Cal. 4th at 965.) Though the court does not weigh the credibility or comparative 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. ( Zamos, 32 Cal.4th at 965.)

In this case, the evidence shows the underlying lawsuit was brought by Mr. Juchau, who was eventually represented by Boutin Jones Defendants. The complaint filed by Mr. Juchau alleged claims for civil conspiracy and accounting against Plaintiff.

The evidence presented by Plaintiff does not demonstrate that Boutin Jones Defendants lacked probable cause. Considering the evidence submitted by both parties, the Court finds that Plaintiff in this action has not demonstrated that no reasonable attorney would have thought the claim tenable.

Plaintiff’s arguments for a lack of probable cause are as follows:

· (1) Plaintiff was dismissed several years after no evidence was found against Plaintiff and only one court day before trial.

· (2) There is no legal or factual support for the cause of action of conspiracy against Plaintiff in the underlying litigation, because:

o (a) conspiracy is a theory of liability, not a tort;
o (b) the bookkeeping and accounting process testified to by Juchau in his deposition in 2013 would keep Plaintiff of knowing of the fraud committed by Virk or concealing fraud;
o (c) Plaintiff could not be legally responsible for the underlying tort of fraud

and concealment of Mass Enterprise’s information; and

o (d) Juchau’s conspiracy theory regarding the link between Plaintiff and Virk was unsupported even by inference.
· (3) There is no legal or factual support for the cause of action for accounting against Plaintiff.

· (4) Boutin Jones Defendants continued to prosecute Plaintiff after learning of the lack of factual support for the claims because:

o (a) Defendants knew the facts in the underlying complaint did not have evidentiary support;

o (b) Defendants included Plaintiff merely to gain leverage in the lawsuit; and
o (c) Boutin Jones Defendants continued to prosecute Plaintiff even after deciding to “streamline” the litigation against Virk.

The Court does not find Plaintiff’s arguments to meet the burden of demonstrating that no reasonable attorney would have continued to litigate the underlying litigation against Plaintiff, and therefore finds there was probable cause as to both causes of action in the underlying litigation.

Plaintiff is unable to cite to conclusive evidence of a lack of merit to the underlying litigation. Even reviewing all of Plaintiff’s evidence together, the Court does not find that the underlying action for conspiracy and/or accounting lacked probable cause.

“Probable cause may be present even when a suit lacks merit. Favorable termination of the suit often establishes lack of merit, yet the plaintiff in a malicious prosecution action must separately show lack of probable cause. Reasonable lawyers can differ, some seeing as meritless suits which others believe have merit, and some seeing as totally and completely without merit suits which others see as only marginally meritless. Suits which all reasonable lawyers agree totally lack merit-that is, those which lack probable cause-are the least meritorious of all meritless suits. Only this subgroup of meritless suits present no probable cause. [See In re Marriage of Flaherty (1992) 31 Cal.3d 637, 650 (an appeal that is simply without merit is not by definition frivolous and should not incur sanctions).]” (Roberts v. Sentry Life Ins. (1999) 76 Cal.App.4th 375, 382.)

Here, two law firms and multiple attorneys represented Juchau in the underlying litigation. Plaintiff had a pre-existing relationship with Virk and performed other work for Virk for Mass Enterprises and Virk personally. While Juchau provided the majority of the financial information for Sunmart to Juchau, this did not conclusively establish that Plaintiff had no involvement with Virk’s scheme. Further, Plaintiff was privy to financial information for Mass Enterprises. While it did not require Plaintiff to disclose private information regarding Mass Enterprises to Juchau, this theory could have shown that Plaintiff had additional information about Virk’s scheme.

Further, Boutin Jones Defendants dismissed not only Plaintiff but also Virk’s family members on the eve of trial, supporting Boutin Jones Defendants’ representation that Plaintiff was dismissed for procedural reasons and trial strategy rather than in recognition of a lack of merit.

Additionally, Plaintiff’s arguments about the focus of counsel on Virk and lack of briefing devoted to Plaintiff throughout the litigation further supports the argument that counsel was focused on Virk as the main wrongdoer in the underlying litigation. This

does not necessarily mean that the claim against Plaintiff did not also have merit.

Plaintiff also focuses on the lack of allegations regarding Plaintiff in the underlying complaint naming Plaintiff, but it does not appear that Plaintiff challenged the pleading. Likewise, it appears that Plaintiff did not move for summary judgment in the underlying litigation.

Upon review of the evidence, the Court finds Plaintiff has not made a prima facie showing with regard to demonstrating a lack of probable cause.

Malice

Malice does not require actual hostility or ill will but is present when proceedings are initiated primarily for an improper purpose. “The ‘malice’ element . . . relates to the subjective intent or purpose with which the defendant acted initiating the prior action. [ Sheldon Appel, 47 Cal.3d at 874.] The motive of the defendant must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose. [Citation.] The plaintiff must plead and prove actual ill will or some improper ulterior motive. [Citation.] It may range anywhere from open hostility to indifference. [Citation.]” (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 494.)

“As [the Court of Appeal] explained in Downey Venture v. LMI Ins. Co., ‘[m]erely because the prior action lacked legal tenability, as measured objectively (i.e., by the standard of whether any reasonable attorney would have thought the claim tenable [citation], without more, would not logically or reasonably permit the inference that such lack of probable cause was accompanied by the actor’s subjective state of mind. In other words, the presence of malice must be established by other, additional evidence. [¶] . . . [T]hat evidence must include proof of either actual hostility or ill will on the part of the defendant or a subjective intent to deliberately misuse the legal system for personal gain or satisfaction at the expense of the wrongfully sued defendant. [Citation.]” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218, quoting Downey Venture, 66 Cal.App.4th at 498-499, fn. omitted, emphasis in original.) Further, ill will or malice on the part of the client cannot be imputed to the attorney and must be independently proven against counsel. (Daniels, 182 Cal.App.4th at 225.)

Here, Plaintiff does not allege actual hostility or ill will on behalf of Boutin Jones Defendants, but argues that Plaintiff was included in the underlying litigation to gain leverage in the lawsuit and that Boutin Jones Defendants continued to prosecute the claims against Plaintiff despite a lack of merit. Plaintiff also conjectures that Plaintiff was named in the underlying litigation as a result of a mistaken belief that Plaintiff was friends with Virk and naming Plaintiff might incentivize Virk’s handling of the underlying litigation.

As discussed above, the Court does not find that Plaintiff has met his burden of demonstrating a lack of probable cause, i.e., a lack of merit, in the underlying litigation. Plaintiff has not provided any evidence to demonstrate that Plaintiff’s naming in the underlying litigation was a misuse of the legal system.

Request for Judicial Notice

Boutin Jones Defendants’ request for judicial notice is GRANTED.

Objections to Evidence

Plaintiff’s objections to evidence are overruled. The Court notes that Plaintiff failed to cite sections of the Evidence Code, supporting case law, or specifically quote the material to which Plaintiff was objecting. The Court need not address Boutin Jones Defendants’ objections to Plaintiff’s evidence. Even allowing Plaintiff’s evidence, the Court finds Plaintiff has not met his burden.

Conclusion

For the above reasons, Boutin Jones Defendants’ anti-SLAPP motion to strike is GRANTED.

Boutin Jones Defendants shall prepare a formal order for the Court’s signature pursuant to C.R.C. 3.1312.

Item 8 2017-00215588-CU-NP

Sheikh Idrees vs. Blaine Juchau

Nature of Proceeding: Motion to Strike (SLAPP) (Richard Shoemaker-Moyle)

Filed By: Rambarran, Ian A.

Defendants Richard D. Shoemaker-Moyle and Shawn M. Krogh (“Radoslovich Defendants”) special motion to strike the complaint of Sheikh Idrees (“Plaintiff” or “Idrees”) pursuant to Code of Civil Procedure section 425.16 is ruled upon as follows.

Overview

In December 2011, Virk filed a lawsuit in Yolo County Superior Court against Juchau for allegedly locking him out of the business and claimed defamatory statements by Juchau that Virk had committed fraud and was a thief. Defendants Richard E. Shoemaker and Shawn M. Krogh (“Radoslovich Defendants”) were retained by Juchau to defend the action. Plaintiff did not name name partner Frank Radoslovich or Radoslovich Defendants’ firm in its current iteration in the instant litigation.

Radoslovich Defendants answered the complaint and filed a cross-complaint against Virk related to Virk’s alleged fraudulent conversion of money and inventory from Sunmart and the concealment of that fraud from Juchau.

Plaintiff had been hired by Virk to prepare taxes and payroll for Sunmart. Plaintiff also

performed a similar function for Virk’s other company, Mass Enterprises.

Plaintiff filed his own cross-complaint against Juchau for breach of contract and sought damages for unpaid work performed on behalf of Sunmart. Plaintiff did not name Virk in his cross-complaint.

Radoslovich Defendants were substituted out as counsel for Juchau on February 3, 2016. (Subsequent counsel are also named as defendants in this litigation.) Trial was set for July 18, 2016. On July 15, 2016, Juchau, through subsequent counsel, dismissed without prejudice Juchau’s cross-complaint against Plaintiff and Virk’s family members. Subsequent counsel alleges the dismissal was a strategic decision to focus the trial on Virk, but Radoslovich Defendants were not involved in that decision.

The jury found in favor of Plaintiff on his own cross-complaint against Juchau for breach of contract, wherein Plaintiff sought damages for unpaid services rendered to Sunmart.

One year after Plaintiff was dismissed from the underlying cross-complaint by Juchau, he filed the instant litigation alleging malicious prosecution and naming as defendants Juchau, Radoslovich Defendants, and Juchau’s subsequent counsel.

Legal Standard

At the same time, however, the Court may strike a portion of a cause of action arising from protected activity while refusing to strike other portions. (See Cho v. Chang

(2013) 219 Cal.app.4th 521, 523, 527; accord City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 773-774.) Where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is merely incidental to the unprotected conduct. (See Burrill v. Nair (2013) 217 Cal.App.4th 357, 379-381.)

Analysis

Protected Activity

Plaintiff concedes that Radoslovich Defendants meet the first step in the Court’s analysis. (See Oppo. at 8 (“First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. For the purposes of this Motion, this point is conceded by Plaintiff.”).) Therefore, the Court turns to the second step of its analysis.

Probability of Prevailing

Litigation Instituted by Defendants and Terminated in Plaintiff’s Favor

The first element here is not contested with regard to the litigation being instituted by Defendants.

(1992) 4 Cal.App.4th 857, 881.)

Plaintiff contends that subsequent counsel dismissed Plaintiff from the underlying litigation in recognition of the lack of merit of Juchau’s cross-complaint against Plaintiff.

Subsequent counsel allege the underlying cross-complaint against Plaintiff was dismissed as a matter of strategy to (1) preserve any claims that Juchau might still have against Plaintiff; (2) avoid confusing the jury; and (3) to focus the case on the main defendant, Virk. Regardless, it is undisputed that Radoslovich Defendants were not involved in this decision. The dismissal occurred nearly two years after Defendant Krogh was off the underlying case and over a year after Defendant Shoemaker-Moyle was off the case.

Probable Cause

& Oliker (1989) 47 Cal.3d 863, 885-886.)

In this case, the evidence shows the underlying lawsuit was brought by Mr. Juchau, who was represented by Radoslovich Defendants. The complaint filed by Mr. Juchau alleged claims for civil conspiracy and accounting against Plaintiff.

The evidence presented by Plaintiff does not demonstrate that Radoslovich Defendants lacked probable cause. Considering the evidence submitted by both parties, the Court finds that Plaintiff in this action has not demonstrated that no reasonable attorney would have thought the claim tenable.

Plaintiff’s arguments for a lack of probable cause are as follows:

· (1) Plaintiff was dismissed several years after no evidence was found against Plaintiff and only one court day before trial.
· (2) There is no legal or factual support for the cause of action of conspiracy

against Plaintiff in the underlying litigation, because:
o (a) conspiracy is a theory of liability, not a tort;

o (b) the bookkeeping and accounting process testified to by Juchau in his deposition in 2013 would keep Plaintiff of knowing of the fraud committed

by Virk or concealing fraud;
o (c) Plaintiff could not be legally responsible for the underlying tort of fraud

and concealment of Mass Enterprise’s information; and
o (d) Juchau’s conspiracy theory regarding the link between Plaintiff and Virk was unsupported even by inference.
· (3) There is no legal or factual support for the cause of action for accounting against Plaintiff.
· (4) Radoslovich Defendants and subsequent counsel continued to prosecute Plaintiff after learning of the lack of factual support for the claims because:

o (a) Defendants knew the facts in the underlying complaint did not have evidentiary support;

o (b) Defendants included Plaintiff merely to gain leverage in the lawsuit;

and
o (c) Subsequent counsel continued to prosecute Plaintiff even after deciding to “streamline” the litigation against Virk.

Further, subsequent counsel dismissed not only Plaintiff but also Virk’s family members on the eve of trial, supporting subsequent counsel’s representation that Plaintiff was dismissed for procedural reasons and trial strategy rather than in recognition of a lack of merit.

Additionally, Plaintiff’s arguments about the focus of Radoslovich Defendants and subsequent counsel on Virk and lack of briefing devoted to Plaintiff throughout the litigation further supports the argument that counsel was focused on Virk as the main wrongdoer in the underlying litigation. This does not necessarily mean that the claim against Plaintiff did not also have merit.

Upon review of the evidence, the Court finds Plaintiff has not made a prima facie

showing with regard to demonstrating a lack of probable cause.

Malice

Here, Plaintiff does not allege actual hostility or ill will on behalf of Radoslovich Defendants, but argues that Plaintiff was likely included in the underlying litigation to gain leverage in the lawsuit and that Radoslovich Defendants and subsequent counsel continued to prosecute the claims against Plaintiff despite a lack of merit. Plaintiff also conjectures that Plaintiff was named in the underlying litigation by Radoslovich Defendants as a result of a mistaken belief that Plaintiff was friends with Virk and naming Plaintiff might incentivize Virk’s handling of the underlying litigation.

Request for Judicial Notice

Radoslovich Defendants’ request for judicial notice is GRANTED.

Objections to Evidence

Defendants’ objections to Plaintiff’s evidence. Even allowing Plaintiff’s evidence, the Court finds Plaintiff has not met his burden.

Conclusion

For the above reasons, Radoslovich Defendants’ anti-SLAPP motion to strike is GRANTED.

Radoslovich Defendants shall prepare a formal order for the Court’s signature pursuant to C.R.C. 3.1312.

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