Judge Lisa K. Sepe-Wiesenfeld, Case Number: 24SMCV05402, Date: 2025-01-24 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 24SMCV05402, Date: 2025-01-24 Tentative Ruling

Defendants Chatly M. Geoulla and B&D Law Group, APLC (“Defendants”) move the Court for an order striking the claim against them in Plaintiff Bennett Alan Spector (“Plaintiff”)’s complaint on the ground that the claim arises from protected activity, as the claim is for malicious prosecution, and Plaintiff is not likely to succeed on the merits of his claim because he cannot show that he achieved a favorable termination in his favor, as the motion for summary judgment was granted on procedural grounds, an absence of probable cause, and that Defendants litigated the underlying action with actual malice.

Plaintiff brings this malicious prosecution action to recover damages arising out of an action Defendants filed against Plaintiff for breach of contract in which B&D Law Group was the plaintiff, and Geoulla represented B&D Law Group. (Compl. ¶ 1.) Plaintiff alleges that in the underlying action he settled a third party’s case after she discharged B&D Law Group as her counsel, and Defendants then filed an action against Plaintiff, which was terminated in Plaintiff’s favor on August 19, 2024. (Compl. ¶¶ 11-21.) Plaintiff now brings this action for malicious prosecution.

The California legislature has authorized a special motion to strike that may be filed in lawsuits that seek to “chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).) Code of Civil Procedure section 425.16, subdivision (b)(1), 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 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.

Accordingly, section 425.16 posits a two-step process for determining whether an action is a strategic lawsuit against public participation (SLAPP). First, the Court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (See Code Civ. Proc., § 425.16, subd. (b)(1).) “A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in [section 425.16,] subdivision (e).” (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043.) Those categories include “(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).) If defendant makes a threshold showing that the challenged cause of action is one arising from protected activity, the burden shifts to the plaintiff to establish a likelihood of prevailing on the complaint. (See Code Civ. Proc., § 425.16, subd. (b)(1).)

To invoke Code of Civil Procedure section 425.16, a defendant need only demonstrate that a suit arises from the defendant’s exercise of free speech or petition rights. (See Code Civ. Proc., § 425.16, subd. (b); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) This is determined by “the gravamen or principal thrust of the action.” (See In re Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) “In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.) “In making its determination, the court shall consider 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).)

Plaintiff’s claim against Defendants is based on litigation of Los Angeles Superior Court Case No. 22SMCV00114 (B&D Law Group, APLC v. Law Offices of Bennett A. Spector) (“the underlying action”). This conduct falls within the purview of Code of Civil Procedure section 425.16, subdivision (e). Therefore, the Court finds Defendants have satisfied the first prong of the anti-SLAPP statute as to Plaintiff’s claim for malicious prosecution, as Plaintiff’s claim arises from protected activity.

If the defendant makes a threshold showing that the challenged cause of action is one arising from protected activity, the burden shifts to the plaintiff to establish a likelihood of prevailing on the complaint. (See Code Civ. Proc., § 425.16, subd. (b)(1).) “In order to establish a probability of prevailing on the claim, a plaintiff responding to an anti-SLAPP motion must state and substantiate a legally sufficient claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, superseded by statute on other grounds as noted in Hutton v. Hafif (2007) 150 Cal.App.4th 527, 547, citation, quotation marks, and brackets omitted.) To do so, “the 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.” (Ibid., quotation marks omitted.) In considering whether a plaintiff’s claim has merit, “the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant,” and while “the court does not weigh the credibility or comparative probative 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.” (Ibid., emphasis in original.)

“To prevail on a malicious prosecution claim, the plaintiff must show that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination favorable to the plaintiff; (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 (Soukop).)

As for the first element, “[i]n order for a plaintiff to state a cause of action for malicious prosecution, he must plead and prove that the prior judicial proceeding of which he complains terminated in his favor.” (Asia Investment Co. v. Borowski (1982) 133 Cal.App.3d 832, 837.) “A termination is . . . ‘favorable’ if its nature is such as to indicate the innocence of the accused”; “[i]f, on the other hand, the dismissal is on technical grounds, for procedural reasons, or for any other reason not inconsistent with his guilt, it does not constitute a favorable termination.” (Id. at pp. 837-838.) Plaintiff argues that the action was terminated in his favor because it was found that B&D Law Group did not have a written contract with him, but this does not bear on Plaintiff’s “innocence” of the claims he breached the contract, and the ruling includes no statement or finding that Plaintiff was innocent of the alleged conduct. Further, the finding that certain claims were barred by the statute of limitations also does not show that Plaintiff was “innocent” of the conduct alleged in those claims. Thus, the Court cannot conclude that Plaintiff can establish that the underlying action was terminated in his favor as required for a malicious prosecution claim.

As for the second element, “[a] litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.” (Soukup, supra, 39 Cal.4th at 292.) Plaintiff argues that Defendants were informed that the statute of limitations had expired on all their claims, but they continued the action, thus showing there was no probable cause for the claims. (Opp’n, Spector Decl. ¶ 13, Ex. D.) As to the breach of contract claim, though, there was no finding that it was barred by the statute of limitations, and although the Court granted the motion for summary adjudication as to that claim, it was based on a finding that there was no cognizable contract, and Plaintiff provides no evidence here that would establish that Defendants did not have a reasonable belief that there was a contract. Defendants argue that their claim supported a theory of aiding and abetting breach of contract. The Court reads the complaint in the underlying action as properly pled despite the Court’s conclusion that no contract existed between Plaintiff and Defendants because it was clear that Defendants sought to assert a claim based on a third party’s contractual breach. This does not mean the claim should have been successful; rather, the Court need only conclude here that Defendants brought a claim based on facts they believed were true and which was tenable under those facts, even if not successfully alleged, such that the Court cannot conclude that Plaintiff can establish a lack of probable cause as required for a malicious prosecution claim.

Further, to demonstrate the third element, that Defendants litigated the underlying action with malice, Plaintiff must establish “actual ill will or some improper ulterior motive.” (Soukup, supra, 39 Cal.4th at 292, italics omitted.) Notably, “[m]alice may also be inferred from the facts establishing lack of probable cause.” (Ibid.) Plaintiff has not demonstrated that Defendants litigated the action against Plaintiff with malice. Plaintiff provides only conclusory statements that malice can be implied, but this does not establish malice through reference to evidence. Defendants brought a claim based on their understanding of what was owed to them, and there is no evidence that Defendants had some ill will toward Plaintiff or an ulterior motive for filing the action against him. Thus, the Court finds that Plaintiff has not established the third element of his malicious prosecution claim against Defendants, such that the Court finds that Plaintiff cannot demonstrate a likelihood of prevailing on its claim for malicious prosecution against Defendants. Accordingly, Defendants Chatly M. Geoulla and B&D Law Group, APLC’s Special Motion to Strike is GRANTED. Defendants Chatly M. Geoulla and B&D Law Group, APLC shall prepare, serve, and submit a proposed judgment as per statute.

Code of Civil Procedure section 425.16, subdivision (c), provides that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” Under section 425.16, an award of fees and costs is mandatory. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) In that Defendants are the prevailing parties, they are entitled to their reasonable attorney fees and costs, the amount of which shall be determined upon Defendants filing a noticed motion for attorney fees and memorandum of costs.