Judge: Gary I. Micon, Case: 23CHCV02932, Date: 2024-04-18 Tentative Ruling

Case Number: 23CHCV02932    Hearing Date: April 18, 2024    Dept: F43

Dept. F43

Date: 4-18-24

Case #23CHCV02932, Prince Gerard Mahboubian vs. Barbara Medovoy

Trial Date: N/A

 

SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CCP § 425.16

 

MOVING PARTY: Defendants Barbara Medovoy

RESPONDING PARTY: Plaintiff Prince Gerard Mahboubian

 

RELIEF REQUESTED

Defendant is requesting that the Court strike Plaintiff’s complaint.

 

RULING: The special motion to strike is granted.

 

SUMMARY OF ACTION

Prior to this case, Defendant Barbara Medovoy (Defendant)) filed an unlawful detainer action against Plaintiff Prince Gerard Mahboubian (Plaintiff) in 2022. That case resulted in a default judgment in Defendant’s favor against Plaintiff. Plaintiff was locked out of the premises.

 

Subsequent to that case, Plaintiff in the current case filed a complaint against Defendant for breach of contract and wrongful eviction in December 2022. Defendant filed an anti-SLAPP motion to strike Defendant’s complaint. That motion was granted and that subsequent case was involuntarily dismissed on August 29, 2023.

 

On September 29, 2023, Plaintiff filed the current complaint for malicious prosecution against Defendant. Defendant’s complaint appears to argue that Defendant’s prior case against him constituted malicious prosecution because it was a wrongful eviction.

 

Defendant has filed an anti-SLAPP motion to strike Plaintiff’s complaint. Plaintiff opposes Defendant’s motion.

 

Defendant’s Request for Judicial Notice: Defendant has requested that the Court take judicial notice of filings from the previous cases, as well as the Sheriff’s notice of lockout. The Court takes judicial notice of these documents.

 

ANALYSIS

CCP § 425.16 (b)(1), the anti-SLAPP statute, provides: “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 or 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.”

 

The protected conduct is defined under CCP § 425.16 (e) (1) –(4) which states: “As used in this section, ‘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.” 

 

Therefore, regardless of the label assigned to a cause of action, “[i]f the supporting allegations include conduct furthering the defendant's exercise of the constitutional rights of free speech or petition, the pleaded cause of action ‘arises from’ protected activity, at least in part, and is subject to [a] special motion to strike.” (Baral v. Schnitt (2016) 1 Cal.5th 376 at 381- 382 (Baral) quote marks omitted.)

 

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a “summary-judgment-like procedure.” The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. Claims with the requisite minimal merit may proceed.” (Baral at 384-85, citations omitted.)

 

First Step

“To prevail on an anti-SLAPP motion, the movant must first make ‘a threshold showing the challenged cause of action’ arises from an act in furtherance of the right of petition or free speech in connection with a public issue.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) “A claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.)

 

The Supreme Court has noted:¿¿

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.] “[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.” [Citations.] Instead, the focus is on determining what “the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” [Citation.] “The only means specified in section 425.16 by which a moving defendant can satisfy the [‘arising from’] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e)....” [Citation.] In short, in 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.¿

(Id. at p. 1063.)¿

 

In this case, prior litigation would undoubtedly be protected speech as contemplated by CCP § 425.16. Filing a claim for relief in court and the “basic act of filing litigation” are a “statement or writing made before a ... judicial proceeding.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 90.)

 

Furthermore, Plaintiff has not provided any argument in opposition that Defendant failed to make a threshold showing that the filing of the underlying cross-complaint was a statement or writing made before a judicial proceeding.

 

Accordingly, Defendant has made a threshold showing that the filing of the underlying lawsuit was a statement or writing made before a judicial proceeding. In Kinsella v. Kinsella, the Court of Appeal considered the cause of action for malicious prosecution in light of the previous civil action filed. ((2020) 45 Cal.App.5th 422.) The Court held that on a claim for malicious prosecution, the opposition to an anti-SLAPP motion must demonstrate the claim is “supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the Plaintiff is credited.” (Id. at 450-53.) As such, the Court must address the second step and determine whether Plaintiff has made a prima facie showing of facts that he could prevail on the malicious prosecution claim.

 

Second Step

Because Defendant met her burden for the first step, it is necessary to determine the probability of Plaintiff’s success on the merits.

 

The second step requires a prima facie showing of facts which, if proven at trial, would support a judgment in favor of the Plaintiffs. As the Court in Navellier v. Sletton (2002) 29 Cal.4th 82, 94, noted, claims must have only “minimal merit” to avoid dismissal. (See also Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 64 (“the proponent of a speech-burdening claim may avoid an anti-SLAPP dismissal by submitting an affidavit substantiating the claim’s legal sufficiency”).)

 

The elements need to show a malicious prosecution cause of action are “(1) the defendant brought (or continued to pursue) a claim in the underlying action without objective probable cause; (2) the defendant pursued the claim with subjective malice; and (3) the court resolved the underlying action in plaintiff’s favor.” (Citizens of Humanity, LLC v. Hass (2020) 46 Cal.App.5th 589, 598–599.) Each of these element must be proved by Plaintiff. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50.)

 

Favorable Determination

First, Defendant argues that there was no favorable termination for Plaintiff. The California Supreme Court has explained the “favorable termination” element of a malicious prosecution claim as follows:

“It is apparent ‘favorable’ termination does not occur merely because a party complained against has prevailed in an underlying action. While the fact he has prevailed is an ingredient of a favorable termination, such termination must further reflect on his innocence of the alleged wrongful conduct. If the termination does not relate to the merits--reflecting on neither innocence of nor responsibility for the alleged misconduct--the termination is not favorable in the sense it would support a subsequent action for malicious prosecution.” (Lackner v. LaCroix (1979) 25 Cal.3d 747, 751.)

 

In this case, Defendant prevailed in the underlying action. Default judgment was entered against Plaintiff in Defendant’s favor. Default judgment is undeniably an unfavorable outcome for Plaintiff.

 

Based on this, Plaintiff has failed to demonstrate that the underlying action was resolved in his favor.

 

Probable Cause

Defendant prevailed in the underlying action, so there was clearly probable cause for Defendant to maintain that action. Plaintiff does not make any arguments concerning probable cause in his opposition.

 

Malice

The final element is malice. The “malice” element “relates to the subjective intent or purpose with which the defendant acted in initiating the prior action…The plaintiff must plead and prove actual ill will or some improper ulterior motive.” (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 494.)

 

Plaintiff appears to argue in his opposition that Defendant acted with malice in some way. It is unclear from his opposition which of Plaintiff’s actions were allegedly maliciousness.

 

Plaintiff has failed to demonstrate that Defendant acted with malice is maintaining the underlying case.

 

­Other Arguments

Defendant’s motion also includes arguments related to the prohibition against splitting a cause of action and collateral estoppel. However, these are not relevant to causes of action for malicious prosecution, nor are they a basis for evaluating an anti-SLAPP motion. The Court will not address Defendant’s arguments concerning these issues.

 

CONCLUSION

Defendant has met both prongs for the anti-SLAPP motion. She made the threshold showing that the underlying action was a judicial proceeding. Next, the Court found that Plaintiff failed to make a prima facie showing that he would succeed on the merits of his malicious prosecution cause of action.

 

Accordingly, Defendant’s special motion to strike Plaintiff’s complaint pursuant to CCP § 425.16 is granted.

 

Moving party to give notice.