Judge Bruce G. Iwasaki, Case Number: 23STCV25288, Date: 2024-05-13 Tentative Ruling

This is a malicious prosecution action. Plaintiff Young Ja Cho (Plaintiff or Plaintiff Cho) sued Defendant Hyoung Wook Ko (Defendant or Defendant Ko) for maliciously and frivolously suing Plaintiff in an underlying civil litigation. The Complaint alleges causes of action for (1.) malicious prosecution, and (2.) intentional infliction of emotional distress.

On February 6, 2024, Defendant Ko filed a Special Motion to Strike the Complaint pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP motion). Plaintiff opposed the anti-SLAPP motion.

Defendant’s request for judicial notice of Exhibits 1-3 is granted. (Evid. Code, § 452, subd. (d).)

The special motion to strike pursuant to Code of Civil Procedure section 425.16 is granted.

“A cause of action 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 shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech. (Code Civ. Proc., § 425.16, subd. (a); Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)

Courts employ a two-step process to evaluate special motions to strike strategic lawsuits against public participation (SLAPP). (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) First, the defendant must show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech. (Ibid.) “The moving defendant bears the burden of identifying all allegations of protected activity, and the claims supported by them.” (Baral v. Schmitt (2016) 1 Cal.5^th 376, 396.) In the second step, it “ ‘is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.’ ” (Equilon, supra, 29 Cal.4^th at p. 61.) In determining whether the plaintiff has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (Soukup).)

“Analysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from protected activity or has merit. Instead, courts should analyze each claim for relief—each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action—to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010.)

As outlined above, in the first step of the analysis, Defendant Ko, the party moving to strike the Complaint, must demonstrate that Plaintiff’s claims arise from one of four categories of protected activity. An “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e).)

“As our Supreme Court has recognized, ‘the “arising from” requirement is not always easily met.’ [Citation.] ‘[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] Moreover, that a cause of action arguably may have been “triggered” by protected activity does not entail that it is one arising from such.’ [Citation.] ‘A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] Critically, “the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.” [Citations.]’ [Citation.] ‘[I]n ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.’ [Citation.] Put another way, courts should first identify ‘the allegedly wrongful and injury-producing conduct that provides the foundation for the claims,’ and then determine whether that conduct itself constitutes protected activity. [Citations.]” (Callanan v. Grizzly Designs, LLC (2022) 81 Cal.App.5th 517, 526 (Callanan) [citing Park, supra, 2 Cal.5th at pp. 1062-1063].)

Defendant first argues that Plaintiff’s claims arise from protected activity under Code of Civil Procedure section 425.16 because Plaintiff’s claims are premised on Defendant’s petitioning activity of filing and prosecuting a lawsuit against Plaintiff. (Compl., ¶¶ 16-24.)

By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit. (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1130–1131.) Accordingly, it is well-established that malicious prosecution causes of action fall within the purview of the anti-SLAPP statute. (See, e.g., White v. Lieberman (2002) 103 Cal.App.4th 210, 220–221; Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1188; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087–1088.)

Further, the intentional infliction of emotional distress claim also arises from Defendant’s action in filing and maintaining his lawsuit against Plaintiff. (Compl., ¶¶ 33-37.)

In opposition, Plaintiff argues that her claims did not satisfy the requirements of the first prong because the litigation does not involve an issue of public concern.

Plaintiff misunderstands the statutory requirements of Section 425.16, subdivision (e)(1) and (e)(2). As explained in Sipple v. Foundation For Nat. Progress (1999) 71 Cal.App.4th 226, a defendant making a motion to strike under section 425.16, subdivision (e)(1) and (2) need not separately demonstrate that the statement concerned an issue of public significance.... [I]n crafting the statute, the Legislature equated a ‘public issue’ with the authorized official proceeding to which it connects.” (Sipple, supra, 71 Cal.App.4th at pp. 236–237 [emphasis added] [citing Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1118].)

Accordingly, Defendant has met his burden of showing that Plaintiff’s claims arise from protected activity.

On the second component of the analysis, to defeat the anti-SLAPP motion, 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.’ ” (Soukup, supra, 39 Cal.4th at p. 291.) In this second step, courts employ a “summary-judgment-like” procedure, “accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff’s evidence as a matter of law.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.) The Court does not assess credibility, and the plaintiff is not required to meet the preponderance of the evidence standard. The Court accepts as true the evidence favorable to the plaintiff, who need only establish that his or her claim has “minimal merit” to avoid being stricken as a SLAPP. (Soukup, supra, 39 Cal.4th at p. 291.)

“ ‘To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove 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 ...; (2) was brought without probable cause ...; and (3) was initiated with malice....’” (Crowley v. Katleman (1994) 8 Cal.4th 666, 676 [citations omitted].) “The actionable harm is in forcing the individual to expend financial and emotional resources to defend against a baseless claim.” (Pacific Gas & Electric Co. v. Bear Stearns Co. (1990) 50 Cal.3d 1118, 1131.)

The tort of malicious prosecution also includes the act of “continuing to prosecute a lawsuit discovered to lack probable cause.” (Zamos v. Stroud (2004) 32 Cal.4th 958, 973.) “Continuing an action one discovers to be baseless harms the defendant and burdens the court system just as much as initiating an action known to be baseless from the outset.” (Id. at p. 969.) Thus, an attorney “may be held liable for continuing to prosecute a lawsuit discovered to lack probable cause.” (Id. at p. 960.) “Only those actions that any reasonable attorney would agree are totally and completely without merit may form the basis for a malicious prosecution suit.” (Id. at p. 970.) “The same standard” applies “to the continuation as to the initiation of a suit.” (Ibid.)

Thus, to establish the second prong, Plaintiff is required to demonstrate her malicious prosecution claim is “ ‘ “both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence [she submitted] is credited.” ‘ “ (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89; accord Zamos v. Stroud, supra, 32 Cal.4th at 965; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

Here, in support of this second prong, Plaintiff submits evidence that Defendant Ko initiated a lawsuit (LASC No. 20STCV17221) against Plaintiff. (Cho Decl., ¶ 4.) She states that, in this underlying litigation, Defendant Cho brought claims of fraud, conspiracy and intentional infliction of emotional distress against Plaintiff Cho, alleging that she assisted in fabricating for someone else “‘Marital Statements,’ which had forged signature of KO.” (Cho Decl., ¶ 5.) After trial, the court found “on the complaint” “in favor of defendants Myoung Jin Kang, Young Ja Cho [Plaintiff here], Joo Hee Park, Woo Bum Heo, and Soon Hyung Lee, and against plaintiff Hyoung Wook Ko [Defendant here], on the first cause of action for fraud, the second cause of action for civil conspiracy, and the third cause of action for intentional infliction of emotional distress.”’ (Def.’s RJN Ex. 3 [Statement of Decision].)

Plaintiff Cho asserts that she “absolutely never had known Hyoung Wook Ko (KO), nor had [she] recognized other defendants.” (Cho Decl., ¶ 6.)

This evidence is insufficient to demonstrate minimal merit to Plaintiff’s malicious prosecution claim. That is, even if this evidence is taken as true, it does not show that Defendant Ko brought the underlying action without probable cause and with malice. None of this evidence shows what Defendant subjectively believed to be true in bringing this action.[1]

Accordingly, Plaintiff has failed to make a bare minimum prima facie showing for her claims and, therefore, has not met her burden on the second prong.

The special motion to strike pursuant to Code of Civil Procedure section 425.16 is granted.

[1] In reply, Defendant discusses the fact that neither Plaintiff nor Defendant prevailed on this cross-claims and claims (respectively) in the underlying litigation, but it is not clear how this is relevant to the elements of Plaintiff’s malicious prosecution claim here. Admittedly, Plaintiff’s cross-complaint in the underlying action contained claims for abuse of process, defamation and intentional infliction of emotional distress. (Def.’s RJN Ex. 2.) While the allegations in the Complaint in this action are similar to the allegations in the cross-complaint in the underlying action, the court in the underlying action resolved the matter by finding that the litigation privilege applied to these claims. (Def.’s RJN Ex. 3.) In contrast, the litigation privilege does not extend to actions for malicious prosecution – a claim that Plaintiff Cho did not allege in the Cross-Complaint in the underlying action. (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1242.)

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