Judge Jon R. Takasugi, Case Number: 19STCV30623, Date: 2024-10-28 Tentative Ruling

On 8/29/2019, Plaintiffs 8e6, George Shih, Rodney Miller, Frank Wood, and Mahendra Vora (collectively, Plaintiffs) filed suit against David Max (Max) and Ralph Rogari (Rogari) (collectively, Defendants), alleging malicious prosecution.

On 12/31/2019, Plaintiffs voluntarily dismissed their action without prejudice. As a result, the trial court ruled that the anti-SLAPP motions were moot, and denied the request for attorney fees without consideration.

Defendants appealed the trial court’s denial of attorney fees. The Court of Appeal reversed, writing “[f]ollowing remand, the trial court is instructed to conduct further proceedings adjudicating Max’s and Rogari’s entitlement to fees under section 425.16, subdivision (c) and issue a new order ruling on the fee motion.”

Defendants filed a preemptory challenge pursuant to CCP section 170.6, and this case was reassigned to Department 17.

Now, in keeping with the Court of Appeal’s ruling, the Court takes up the question of Defendants’ attorney fees pursuant to its motion refiled 9/3/2024, and originally filed 8/8/2022.

In order to be entitled to attorney fees, Defendants must establish that they would have prevailed on their anti-SLAPP motion.

As for their anti-SLAPP motion, “[t]o survive anti-SLAPP scrutiny, a plaintiff need only establish their cause of action has ‘minimal merit.’ ” (Cuevas-Martinez v. Sun Salt Sand, Inc. (2019) 35 Cal.App.5th 1109, 1117.)

Here, Plaintiffs assert a single cause of action for malicious prosecution. “ ‘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 [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].’ ” (Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 458 (quoting Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50).)

Defendants argue that Plaintiffs could not have satisfied the second prong[1] of the anti-SLAPP analysis because: (1) none of the Plaintiffs timely opposed Rogari’s motion; (2) Plaintiffs did not allege any facts which could show that the prior claim—Max I—resolved in Plaintiffs’ favor; (2) Plaintiffs did not allege any facts which could show that Defendants did not have probable cause to bring the claim; (3) Plaintiffs’ claims were time-barred.

As to the first contention, the Court located two substantive oppositions filed in response to both Defendants’ anti-SLAPP motions. The opposition to Defendant Rogari’s motion was filed on 12/24/2019, and the opposition to Defendant Max’s motion was filed on 12/23/2019.

As for the second contention, “[a] voluntary dismissal, even one without prejudice, may be a favorable termination which will support an action for malicious prosecution. [Citation.] ‘In most cases, a voluntary unilateral dismissal is considered a termination in favor of the defendant in the underlying action; the same is true of a dismissal for failure to prosecute. [Citations.]’ [Citation.]” (Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808.) Here, Plaintiffs alleged that “on June 27, 2019, the Court entered final judgment in favor of [Plaintiffs] “on all claims asserted by [] David Max against them.” (Complaint ¶ 64.) Plaintiffs further alleged:

Hence, the UNDERLYING ACTION, having been commenced and prosecuted by MAX, through ROGARI and/or DOES 1 through 25, inclusive, and each of them, was pursued to a legal termination on the merits in total and complete favor of 8e6, SHIH, WOOD, VORA and MILLER (along with the other NON-8e6 FORMER DEFENDANTS). The manner of disposition of all three causes of action necessarily reflects the opinion of the Court, MAX, ROGARI and/or DOES 1 through 25, inclusive, and each of them, that the UNDERLYING ACTION lacked merit or otherwise would not succeed. (Ross v. Kish (2006) 145 Cal.App.4th 188, 198.)

As noted by Defendants, “where a proceeding is terminated other than on the merits, the reasons underlying the termination must be examined to see if it reflects the opinion of the court or the prosecuting party that the action would not succeed.” (Fuentes, supra, 38 Cal.App.4th at p. 1808.)

Thus, while Plaintiff is correct that a voluntary dismissal can support a malicious prosecution case, the Court must still evaluate the specifics of the dismissal to ensure the dismissal reflected “the opinion of the court or the prosecuting party that the action would not succeed.” (Id.) Here, the Court concludes there is at the very least a triable issue as to whether or not the claim was dismissed for purely technical reasons, or for substantive reasons. This is because there is nothing in the record that would clearly indicate that the claim was terminated purely for technical reasons.

As for the third contention, Plaintiffs’ Complaint alleges a lack of probable cause. (Complaint ¶ 73.) In their opposition, Plaintiffs submitted declarations and excerpts of deposition testimony to support their contention that Defendants lacked probable cause. (See Opps. 6: 22-15:28.) The Court finds this evidence at least could indicate that Plaintiffs’ claim of lack of probable cause has ‘minimal merit.’ (Cuevas-Martinez, supra, 35 Cal.App.5th at p. 1117.)

Finally, Defendants argue that Plaintiffs’ claims would be time-barred because the statute of limitations for a malicious prosecution action is two years. (CCP § 335.1.) Defendants voluntarily dismissed the original action against Plaintiff 8e6 on 7/5/2017, yet Plaintiffs did not file this action until 8/29/2019. However, in opposition, Plaintiff 8e6 contended that Max voluntarily dismissed 8e6 from the underlying action twice—once on 7/5/2017, and then again on 3/16/2018. (RJN ¶¶ 1, 44, Exhs. 27 and 72 to the AOE.) Accepted as true, the second dismissal would be less than two years from filing this lawsuit (RJN ¶40, Ex. 68 to the AOE), making it timely. (CCP § 335.1.)

The Court found the evidence and argument from both sides on this issue to be confusing and difficult to follow. For example, Defendants do not appear to dispute that there was a second dismissal (in fact, they do not discuss the 3/16/2018 second dismissal date in reply), but no explanation has been offered as to why such a dismissal would (or could) have been necessary. While there seems to be considerable disagreement between the parties as to the purpose and effect of these two dismissals, the Court must conclude at least a triable issue exists as to when the statute of limitations began to run for purposes of Plaintiffs’ claim here.

Taken together, the Court finds that Plaintiffs’ claim had at least minimal merit. As such, Defendants have not established an entitlement to attorney fees incurred in connection with their anti-SLAPP motions. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. For more information, please contact the court clerk at (213) 633-0517.

[1] The parties do not dispute that the first prong of the anti-SLAPP analysis—i.e., protected activity—is met here. As such, the Court’s analysis only involves the second-prong of the anti-SLAPP analysis—i.e., reasonable probability of prevailing.