Judge: Deirdre Hill, Case: 22TRCV00213, Date: 2022-08-19 Tentative Ruling

Case Number: 22TRCV00213    Hearing Date: August 19, 2022    Dept: M

Hearing Date:                          August 19, 2022

Moving Party:                         Plaintiff Mike Harsini

Responding Party:                  Defendant Marcello Curko

Special Motion to Strike

            The court considered the moving, opposition, and reply papers.

RULING

            The special motion to strike is DENIED.

BACKGROUND

            On March 22, 2022, plaintiff Mike Harsini filed a complaint against defendant Marcello Curko for slander/libel (defamation of character) and intentional infliction of mental distress.

LEGAL AUTHORITY

CCP § 425.16 permits the court to strike causes of action arising from an act in furtherance of the defendant’s right of free speech or petition unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim. 

In assessing a defendant’s CCP § 425.16 special motion to strike, the court must engage in a two-step process.  Shekhter v. Financial Indem. Co. (2001) 89 Cal.App.4th 141, 150.  First, the court must decide whether the defendant has met the threshold burden of showing that the plaintiff’s cause of action arises from the defendant’s constitutional rights of free speech or petition for redress of grievances.  Id.  This burden may be met by showing the act which forms the basis for the plaintiff’s cause of action was an act that falls within one of the four categories of conduct set forth in § 425.16(e).

Once a defendant has met its initial burden and established that the anti-SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a “probability” of success on the merits.  CCP §425.16(b); Equilon Enters. LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.  “[T]he 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.”  Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548 (internal quotations omitted).  At this “second stage of an anti-SLAPP hearing, the court may consider affidavits, declarations, and their equivalents if it is reasonably possible the proffered evidence set out in those statements will be admissible at trial.  Conversely, if the evidence relied upon cannot be admitted at trial, because it is categorically barred or undisputed factual circumstances show inadmissibility, the court may not consider it in the face of an objection.  If an evidentiary objection is made, the plaintiff may attempt to cure the asserted defect or demonstrate the defect is curable.”  Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 949.

The trial court properly considers the evidentiary submissions of both the plaintiff and the defendant, but it may not weigh the credibility or comparative strength of the evidence and must instead simply determine whether the plaintiff's evidence would, if believed by the trier of fact, be sufficient to result in a judgment for plaintiff.  McGarry v. Univ. of San Diego (2007) 154 Cal.App.4th 97, 108-09.  The court “accepts as true the evidence favorable to the plaintiff and evaluates the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.”  Flatley v. Mauro (2006) 39 Cal.4th 299, 326.  Further, whether or not the evidence is in conflict in the context of a motion to strike under the anti-SLAPP statute, if the plaintiff has presented a sufficient pleading and has presented evidence showing that a prima facie case will be established at trial, the plaintiff is entitled to proceed.  Moore v. Shaw (2004) 116 Cal.App.4th 182, 193.  Only a minimal showing of merit is required.  Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1421.

DISCUSSION

            Plaintiff brings this special motion to strike alleged malicious prosecution by defendant.

            Plaintiff cites to CCP § 425.18 to support his motion.  CCP § 425.18 governs procedures for SLAPPback actions, which is defined to be “any cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike under Section 425.16.”  CCP § 425.18(b)(2).

            From the moving papers, it is unclear what pleading of defendant’s plaintiff seeks to strike.  Plaintiff clarifies in reply that this motion was intended to strike defendant’s responses to plaintiff’s complaint and plaintiff’s OSC. 

The court notes that, besides the opposition to this motion, the only other paper defendant has filed in this action is the answer to the complaint filed on April 20, 2022.  Defendant has not filed any response to plaintiff’s notice of OSC. 

In any case, defendant’s answer to plaintiff’s complaint does not constitute a SLAPPback action.  Defendant’s answer merely contains responses to plaintiff’s allegations and affirmative defenses.  Defendant’s answer does not assert any causes of action against plaintiff, much less any causes of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike under CCP § 425.16.  In fact, from the reply papers, it appears plaintiff is the one contending defendant engaged in malicious prosecution against him.  Plaintiff is thus not entitled to any relief pursuant to CCP § 425.18 or 425.16.

            Accordingly, the special motion to strike is denied.

            Defendant is ordered to give notice of the ruling.