Judge Marcella O. Mclaughlin, Case Number: 37-2023-00037137-CU-NP-CTL, Date: 2024-04-12 Tentative Ruling

Judge: Marcella O. Mclaughlin, Case: 37-2023-00037137-CU-NP-CTL, Date: 2024-04-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 11, 2024

04/12/2024 09:00:00 AM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited Non-PI/PD/WD tort - Other SLAPP / SLAPPback Motion Hearing 37-2023-00037137-CU-NP-CTL ELLSWORTH VS MATSUMOTO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for SLAPP, 11/22/2023

The special motion to strike filed by defendants Maria Matsumoto and Andrew Vesell is GRANTED in part and DENIED in part.

The special motion to strike filed by defendants Brendan Ozanne and Dawson & Ozanne is GRANTED.

A. The Anti-SLAPP Statute Resolution of an anti-SLAPP motion involves two steps. Baral v. Schnitt (2016) 1 Cal.5th 376, 384.

First, the defendant must establish that the challenged claim arises from activity protected by Code of Civil Procedure section 425.16. Id. Second, for each claim that does arise from protected activity, the plaintiff must show that the claim has at least 'minimal merit.' Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.

Here, plaintiff does not dispute that his malicious prosecution claim arises out of protected activity. (See Oppo. at 7:19-20.) Moreover, '[t]he plain language of the anti-SLAPP statute dictates that every claim of malicious prosecution is a cause of action arising from protected activity because every such claim necessarily depends upon written and oral statements in a prior judicial proceeding.' Daniels v. Robbins (2010) 182 Cal.App.4th 204, 215. Accordingly, the court will analyze the motions under prong two.

To succeed under prong two, the plaintiff must 'demonstrate both that the claim is legally sufficient and that there is sufficient evidence to establish a prima facie case with respect to the claim.' Taus v. Loftus (2007) 40 Cal.4th 683, 714. 'The court does not weigh evidence or resolve conflicting factual claims.' Baral, 1 Cal.5th at 384. '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.' Id. at 385.

B. Malicious Prosecution The tort of malicious prosecution consists of three elements. 'The underlying action must have been: (i) initiated or maintained by, or at the direction of, the defendant, and pursued to a legal termination in favor of the malicious prosecution plaintiff; (ii) initiated or maintained without probable cause; and (iii) initiated or maintained with malice.' Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775.

C. Matsumoto/Vesell's Special Motion to Strike Defendant Vesell Calendar No.: Event ID: TENTATIVE RULINGS

3085295 19 CASE NUMBER: CASE TITLE: ELLSWORTH VS MATSUMOTO [IMAGED] 37-2023-00037137-CU-NP-CTL The motion is granted as to defendant Vesell.

'A person who is injured by groundless litigation may seek compensation from any person who procures or is actively instrumental in putting the litigation in motion or participates after the institution of the action.' Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1131 fn. 11. A person 'participates' after the institution of the action when he or she is added as a plaintiff during the pendency of the underlying action. See Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 873-74; Paramount General Hospital Co. v. Jay (1989) 213 Cal.App.3d 360, 365, fn. 2.

Here, it is undisputed that Vesell was never a party to the Underlying Action. There is likewise no evidence showing that Vesell instigated or was the driving force behind the Underlying Action.

Accordingly, plaintiff has not met his burden of establishing a probability of prevailing on his malicious prosecution claim against Vesell.

Defendant Matsumoto The motion is denied as to defendant Matsumoto. Plaintiff has established that his malicious prosecution claim against Matsumoto has 'minimal merit.' Element 1 – Favorable Termination 'In order for a termination of a lawsuit to be considered favorable with regard to a malicious prosecution claim, the termination must reflect on the merits of the action and the plaintiff's innocence of the misconduct alleged in the lawsuit.' Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1056. 'Where, as here, the previously suing parties voluntarily dismissed the malicious prosecution plaintiff without prejudice, the dismissal is presumed to reflect the plaintiff's innocence.' Gruber v. Gruber (2020) 48 Cal.App.5th 529, 538.

Here, Matsumoto's voluntary dismissal of the Underlying Action is presumptively a favorable termination on the merits. Matsumoto attempts to rebut the presumption by arguing that she dismissed the Underlying Action due to a medical condition – which she raised with Judge Frazier in July 2023 – that prevented her from sitting for a deposition or attending trial. But this explanation merely creates a factual dispute and does not defeat the presumption in favor of plaintiff as a matter of law. See Baral, 1 Cal.5th at 385; see also Olivares v. Pineda (2019) 40 Cal.App.5th 343, 354.

Matsumoto also cites Pattiz v. Minye (1998) 61 Cal.App.4th 822 for the proposition that '[c]ourts have specifically held that the dismissal of an underlying action due in part to an individual's illness does not constitute a favorable termination for the defendant.' (Ps&As at 14:7-8.) However, Pattiz is distinguishable because it involved a dismissal as a discovery sanction – not a voluntary dismissal.

Moreover, the individual who was claiming illness in Pattiz was the plaintiff's daughter, who was not a party to the underlying action. The court held that the daughter's lack of cooperation in discovery could not be imputed to the plaintiff and thus did not reflect the defendant's innocence or the lack of merits of the action. Pattiz, 61 Cal.App.4th at 827-28. No such facts are present here.

In sum, accepting plaintiff's evidence as true and drawing all reasonable inferences from the evidence in his favor, the court finds that plaintiff made the required prima facie showing that there was a favorable termination of the Underlying Action.

Element 2 – Lack of Probable Cause The question of probable cause is 'whether as an objective matter, the prior action was legally tenable or not.' Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d. 863, 868. '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.' Sangster Calendar No.: Event ID: TENTATIVE RULINGS

3085295 19 CASE NUMBER: CASE TITLE: ELLSWORTH VS MATSUMOTO [IMAGED] 37-2023-00037137-CU-NP-CTL v. Paetkau (1998) 68 Cal.App.4th 151, 164-65. Importantly, 'a malicious prosecution cause of action can succeed if any of the claims was brought without probable cause.' Jenkins v. Brandt-Hawley (2022) 86 Cal.App.5th 1357, 1377 (emphasis added).

In this case, the court finds that plaintiff has made a prima facie showing that the spite fence claim was filed by Matsumoto without probable cause. The spite fence claim was added to the Underlying Action on December 27, 2022. It alleged that '[f]ollowing Plaintiff's expression and concerns relating to the cutting of the oleanders and their roots, Defendant intentionally and for no other purpose than to annoy and harm plaintiff planted approximately four tress in the southwest corner of Defendant's property.' (NOL Ex. 50 at ¶ 10.) Plaintiff has submitted evidence showing that he informed Matsumoto in January 2019 (through her previous attorney) that he would be planting the trees in question (Podocarpus trees) for privacy purposes. (NOL. Ex. 19 at p. 6.) Matsumoto never responded. (Ellsworth Decl., ¶ 35.) Mature Podocarpus trees were then planted in October 2019 – i.e., five months before the Underlying Action was filed. (Id. at ¶ 13.) Thus, when Matsumoto added the spite fence claim to the Underlying Action, she knew that (1) the Podocarpus trees had been there for over three years and (2) the trees had been planted for the purpose of providing privacy. The spite fence claim was legally untenable based on these facts.

Element 3 – Malice 'The malice element goes to the defendant's subjective intent in initiating or continuing the prior action.' Olivares, 40 Cal.App.5th at 356. 'It is not limited to actual hostility or ill will and may be present when proceedings are instituted or maintained primarily for an improper purpose.' Id. 'Improper purposes can be established in cases in which, for instance: (1) the person bringing the suit does not believe that the claim may be held valid; (2) the proceeding is initiated primarily because of hostility or ill will; (3) the proceeding is initiated solely for the purpose of depriving the opponent of a beneficial use of property; or (4) the proceeding is initiated for the purpose of forcing a settlement bearing no relation to the merits of the claim.' Daniels, 182 Cal.App.4th at 224.

Here, as discussed above, there is at least minimal merit to plaintiff's claim that Matsumoto filed the spite fence claim without probable cause. See HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218 ('A lack of probable cause is a factor that may be considered in determining if the claim was prosecuted with malice[.]'). Moreover, the evidence before the court raises a reasonable inference that Matsumoto (through her attorney) raised the spite fence claim only when plaintiff rejected her attorney's settlement offer in March 2022. (See NOL Exs. 30-32.) Finally, there is evidence suggesting that Matsumoto harbored hostility or ill will toward plaintiff. This is apparent from the tenor and tone of her communications with plaintiff. (See NOL Ex. 15.).

Accordingly, based on the evidence submitted, the court finds that plaintiff has made a prima facie showing that Matsumoto acted with malice in the initiation and prosecution of the spite fence claim.

Because plaintiff has made an adequate showing that Matsumoto (1) lost the Underlying Action, (2) litigated the spite fence claim without probable cause and (3) acted with malice in doing so, he has carried his burden under prong two of showing that his malicious prosecution claim against Matsumoto has 'minimal merit.' D. The Ozanne Defendants' Special Motion to Strike The motion is granted in its entirety.

The court finds that plaintiff's evidence is insufficient as a matter of law to establish malice as to the Ozanne defendants.

Unlike Matsumoto, there is no evidence that the Ozanne defendants harbored any hostility or ill will Calendar No.: Event ID: TENTATIVE RULINGS

3085295 19 CASE NUMBER: CASE TITLE: ELLSWORTH VS MATSUMOTO [IMAGED] 37-2023-00037137-CU-NP-CTL toward plaintiff. 'Courts should not impute malice to attorneys based on clients' misconduct.' Daniels, 182 Cal.App.4th at 221.

There is likewise insufficient evidence from which malice on the part of the Ozanne defendants may be inferred. 'A defendant attorney's investigation and research...may be relevant to whether the attorney acted with malice.' Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1114. In this case, attorney Ozanne states that he conducted legal research regarding the spite fence claim and, based on his familiar with Civil Code section 841.4, 'it appeared the placement of these trees met the statutory definition of a 'spite fence,' because the trees were unnecessarily exceeding 10 feet in height and appeared to be maliciously erected for the purpose of annoying Ms. Morimoto by intentionally blocking her ocean view.' (Ozanne Decl., ¶ 7.) Plaintiff argues that his attorney specifically informed Ozanne that the spite fence claim lacked merit in May 2022, but Ozanne added the claim anyway. (NOL Ex. 33.) However, 'a letter from a litigation adversary merely suggesting it disagrees with the verity of the allegations in the lawsuit is not sufficient to put the lawyer on notice of the falsity of the client's allegations.' Daniels, 182 Cal.App.4th at 223.

There is no affirmative evidence that the Ozanne defendants had explicit or affirmative awareness that Matsumoto may have had improper motives or that the spite fence claim was untenable. See id. at 227; see also Dunning v. Clews (2021) 64 Cal.App.5th 156, 177.

E. Conclusion This ruling is dispositive as to defendants Andrew Vesell, Brendan Ozanne, and Dawson & Ozanne.

Defendants are directed to prepare and submit a form of judgment consistent with the foregoing.

Defendant Maria Matsumoto must file and serve an answer to the complaint by April 22, 2024.

Any requests for attorneys' fees and costs may be addressed by future noticed motion. See Code Civ.

Proc. § 425.16(c).

Calendar No.: Event ID: TENTATIVE RULINGS

3085295 19