Judge: Michael E. Whitaker, Case: 25SMCV00232, Date: 2025-06-09 Tentative Ruling

Case Number: 25SMCV00232    Hearing Date: June 9, 2025    Dept: 207

TENTATIVE RULING

MOTION

On January 16, 2025, Plaintiff Michelle Kamrany (“Plaintiff”) filed suit against Defendants Schwimer Weinstein LLP, Michael Schwimer, and David Katzoff (“Defendants”) alleging two causes of action for (1) malicious prosecution and (2) abuse of process.

Defendant David Katzoff (“Katzoff”) and Defendants Schwimer Weinstein LLP and Michael Schwimer (together, “Schwimer”) now file separate anti-SLAPP special motions to strike the complaint pursuant to Code of Civil Procedure section 425.16. 

Plaintiff opposes both motions and Defendants reply. 

LEGAL STANDARD

“A cause of action arising from a person's act in furtherance of the ‘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[….]’”  (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788 (hereafter Monster).)  Such lawsuits are commonly known as “SLAPP” suits (Strategic Litigation Against Public Participation).  (Id. at fn. 1.)

Background

The California Legislature enacted Code of Civil Procedure section 425.16, known as the “anti-SLAPP statute” to “allow[] defendants to seek early dismissal of unmeritorious claims arising from protected speech and petitioning activities.”  (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1004 (hereafter Bonni.)  “Enacted by the Legislature in 1992, the anti-SLAPP statute is designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern.”  (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883–884 (hereafter Wilson).)  The anti-SLAPP statute is also designed to expedite the early dismissal of unmeritorious claims arising from protected activity.  (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 642; Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.)  “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384, emphasis in original (hereafter Baral).)  But anti-SLAPP motions are not permitted in limited civil cases. (1550 Laurel Owner’s Assn., Inc. v. Appellate Division of Superior Court (2018) 28 Cal.App.5th 1146, 1149.)

“SLAPPs are unsubstantiated lawsuits based on claims arising from a defendant's constitutionally protected speech or petitioning activity.”  (Kurz v. Syrus Systems, LLC (2013) 221 Cal.App.4th 748, 757 (hereafter Kurz).)  They “seek[] to chill rights to free speech or petition by dragging the speaker or petitioner through the litigation process, without genuine expectation of success in the suit.”  (Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 591–592 (hereafter Area 51 Productions.)  They are “generally brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff.”  (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 479.) 

“The Legislature enacted section 425.16 to provide a summary disposition procedure for SLAPP claims.”  (Area 51 Productions, supra, 20 Cal.App.5th at p. 592.)  The statute “authorizes courts, upon motion by anyone who claims to be the target of a SLAPP suit, to probe the basis for any cause of action allegedly arising from protected communicative activities, and to strike it if the claimant cannot show minimal merit.”  (Ibid.)  A special motion to strike may only be directed to a complaint, cross-complaint, or petition, but not to an answer or affirmative defenses.  (Morris Cerullo World Evangelism v. Newport Harbor Offices & Marina, LLC (2021) 67 Cal.App.5th 1149, 1156-1157.)

Procedure

To determine whether an anti-SLAPP motion should be granted, courts engage in a two-step process and evaluate the merits of the claim(s) using a “summary-judgment-like procedure.”  (Baral, supra, 1 Cal.5th at p. 384.)  “The procedures authorized in the statute allow a defendant to stay discovery before litigation costs mount, obtain early dismissal of the lawsuit, and recover attorney fees.”  (Kurz, supra, 221 Cal.App.4th at p. 757.)  A special motion to strike “is not a substitute for a motion for a demurrer or summary judgment.”  (Belen v. Ryan Seacrest Productions, LLC (2021) 65 Cal.App.5th 1145, 1161.)  And there is no meet and confer requirement prior to filing an anti-SLAPP motion.  (Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1008.) 

First Step

In the first step, the moving defendant has the initial burden of showing that the challenged cause of action arises from protected free speech or petitioning activity.  (Bonni, supra, 11 Cal.5th at p. 1009; Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (hereafter Park).)  “The defendant's first-step burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute.”  (Wilson, supra, 7 Cal.5th at p. 884.)  When the defendant has not met this burden, the court may summarily deny the special motion to strike “without putting the plaintiff to the burden of establishing the probability of success on the merits.”  (Whitehall v. County of San Bernardino (2017) 17 Cal.App.5th 352, 360 (hereafter Whitehall).)

“[I]n 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.”  (Park, supra, 2 Cal.5th at p. 1063.)  It is not enough that a claim was filed after or even “because of” protected activity, but rather the protected activity must “supply elements of the challenged claim.”  (Id. at p. 1064.)  Moreover, courts “must distinguish between speech or petitioning activity that is mere evidence related to liability, and liability that is based on speech or petitioning activity.”  (Whitehall, supra, 17 Cal.App.5th at p. 361.)

Moreover, the anti-SLAPP statute does not require a defendant “to disprove allegations of illicit motive.”  (Wilson, supra, 7 Cal.5th at p. 887.)  Courts must distinguish between “allegations of conduct on which liability is based” and “allegations of motives for such conduct” because “the anti-SLAPP statute is triggered only when the alleged injury-producing conduct is protected activity, not merely the motivating conduct for that activity.”  (Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 887 (hereafter Gaynor).)  However, a defendant’s motives are not “categorically off-limits in determining whether an act qualifies as protected activity under the anti-SLAPP statute” but “the plaintiff's allegations cannot be dispositive of the question.”  (Wilson, supra, 7 Cal.5th at p. 889.)  “[W]hether the defendant's act qualifies as one in furtherance of protected speech or petitioning will depend on whether the defendant took the action for speech-related reasons.”  (Ibid.)  “But there is an important difference between permitting the defendant to present evidence of its own motives in an effort to make out its prima facie case of protected activity and treating a plaintiff's allegations of illicit motive as a bar to anti-SLAPP protection,” which is not proper.  (Ibid.) 

Second Step

Once the court finds the defendant has made the threshold showing, the “the burden then shifts to the plaintiff to show a probability of prevailing on [the] claims.”  (De Havilland v. FX Networks, LLC (2018) 21 Cal.App.5th 845, 854.)  To meet this burden, “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.”  (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 211.)  “[T]he plaintiff must then demonstrate its claims have at least ‘minimal merit.’ ”  (Park, supra, 2 Cal.5th at p. 1061.)  “[A] plaintiff seeking to demonstrate the merit of the claim ‘may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.’”  (Monster, supra, 7 Cal.5th at p. 788.)  “[A] court must at the second step accept as true the evidence favorable to the plaintiff” but is not required to give “similar credence” to allegations in the complaint “in the face of contrary evidence.”  (Wilson, supra, 7 Cal.5th at p. 887.) 

This procedure is essentially a summary judgment motion in reverse.  (Area 55, LLC v. Nicholas & Tomasevic, LLP (2021) 61 Cal.App.5th 136, 152.)  “Rather than requiring the defendant to defeat the plaintiff's pleading by showing it is legally or factually meritless, the motion requires the plaintiff to demonstrate that he possesses a legally sufficient claim which is ‘substantiated,’ that is, supported by competent, admissible evidence.”  (Ibid.)  “Consistent with this summary-judgment-like procedure, the court “must draw all reasonable inferences from the evidence in favor of [the party opposing the anti-SLAPP motion.’”  (Ibid.)  “Only a [cause of action] that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP suit, subject to being stricken under the statute.”  (Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1162.) 

DISCUSSION

1.     Protected Activity

Code of Civil Procedure section 425.16, subdivision (e) provides:  “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 [….]” 

The filing of a lawsuit “indisputably is a ‘statement of writing made before a … judicial proceeding[.]’”  (Navellier v. Sletten (2002) 29 Cal.4th 82, 90.)  “[S]tatements, writings, and pleadings in connection with civil litigation are covered by the anti-SLAPP statute” and “shall be construed broadly” in order to “protect[] the right of litigants to the utmost freedom of access to the courts without the fear of being harassed subsequently by derivative tort actions.”  (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1478-1479.)   “Filing a lawsuit is an act in furtherance of the constitutional right of petition, regardless of whether it has merit.”  (JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1521.)

In particular, all malicious prosecution actions, by their nature, arise from the protected activity of filing and pursuing a lawsuit.  (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735 [by definition, all malicious prosecution actions arise from an underlying lawsuit, or petition to the judicial branch]; Daniels v. Robbins (2010) 182 Cal.App.4th 204, 215 [“The 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”].)

With respect to Plaintiff’s abuse of process cause of action, the Complaint alleges:

65. Defendants misused the LAWSUIT and litigation process by willfully filing the complaint when they knew that KAMRANY could not be liable for any of the causes of action alleged against her in an effort to add more people into the LAWSUIT and seemingly receive more money for the resolution of the matter.

66. Defendants also maintained the position throughout the LAWSUIT that KAMRANY had liability for the causes of action alleged in the LAWSUIT even after production revealed otherwise.

67. Also, Defendants threatened various searches and other invasive discovery methods that would be used against KAMRANY to prove their allegations against her, but the never did any searches and only propounded one set of Request for Production upon KAMRANY and took one two-hour deposition of KAMRANY.

68. The ulterior motive and purpose of Defendants in so misusing the process in the above-described manner was to obtain the following collateral advantage over KAMRANY: (a) to blindly include KAMRANY into the LAWSUIT and (b) intimidate her to believe liability exists, when it did not, and (c) to force her to pay a settlement to KATZOFF, rather than attorney fees to defend the LAWSUIT, in an effort to better their chances in getting more money for their contingency client in the resolution of the matter.

[…]

70. At all times mentioned herein, Defendants SCHWIMER and the FIRM acted willfully with the wrongful intention of injuring KAMRANY and from an improper or evil motive amounting to malice in that Defendants knew that KAMRANY could not be liable for the causes of action they alleged against her and that, as a matter of law, no reasonable attorney would regard as tenable the prosecution of the claim, but then still included KAMRANY in the LAWSUIT. Defendants deposed KAMRANY and propounded one set of Requests for Production and then stated that regardless of what her testimony and her production revealed  which was that she could not possibly be liable for the cause of action against her, that the would not dismiss her from the LAWSUIT. Defendants also threatened various invasive searches of KAMRANY' S home and computers, but then ultimately did not perform any such searches, but insisted that if they would have that they would have found evidence of her involvement with the management of the PROPERTY. And so, Defendants did not dismiss her from the LAWSUIT. As a result of these despicable actions, Plaintiff is, thus, entitled to recover punitive damages from Defendants

(Complaint ¶¶ 65-70.)

            Thus, Plaintiff’s abuse of process cause of action similarly arises from protected petition activity; namely, filing the lawsuit and utilizing the litigation process, including maintaining the position that Plaintiff had liability and both informally requesting and formally propounding discovery in the course of that lawsuit.

            In opposition, Plaintiff argues that the litigation privilege does not apply to evidence of a stipulation Defendants offered and Plaintiff rejected or a 998 Offer to Compromise Defendants served on Plaintiff, pursuant to Code of Civil Procedure section 47.

            In connection with the first cause of action for malicious prosecution, which allegations Plaintiff incorporates by reference into the second cause of action, Plaintiff alleges:

40. On October 12, 2023, SCHWIMER, the FIRM, and Ms. Toscano emailed a Stipulation and [Proposed] Order to Dismiss Michelle Kamrany Without Prejudice to KAMRANY'S counsel.

41. On October 19, 2023, KAMRANY'S Counsel wrote a letter in response to the Stipulation and Proposed Order to Dismiss KAMRANY stating, in effect, that KAMRANY was not willing to waive her costs or be dismissed without prejudice, but still be 'brought back into the lawsuit', as stated in the Stipulation to Dismiss, and that her counsel intended to continue to prepare for the upcoming trial, which had now been continued to March 11, 2024.

42. In an email from SCHWIMER, on October 20, 2023, to KAMRANY'S counsel he stated, with no evidence or explanation, that KAMRANY 'has liability for our client' damages'. He further promised, 'I am confident that between our forensic review of the computers your client has admitted to being in existence, as well as a site inspection of you client's home, where it has been conceded relevant documents were stored, we will find evidence of your client's involvement (direct or indirect) in the management of the property and/or Pamir LLC.'

43. SCHWIMER and the FIRM did none of those things. They did not review any computers. They did no forensics whatsoever. They did not do a site inspection. They did not even do any additional discovery at all.

44. In January 2024, the trial in this matter was continued again to October 28, 2024.

45. On or about March 25, 2024, SCHWIMER, the FIRM, and KATZOFF made a 998 Offer to Compromise with KAMRANY and the other defendants in the amount of $500,000.00 in an effort to apply pressure on the defendants, including KAMRANY, and to intimidate KAMRANY in the hopes of getting settlement funds from her, even though they knew that shew as not a proper defendant in the LAWSUIT.

But Plaintiff’s second cause of action for abuse of process still fundamentally arises from the protected litigation activity of filing a suit, offering a stipulation, preparing for trial, taking the position that Plaintiff has liability, disclosing their theory about what the evidence will show in discovery, propounding discovery, and making a 998 offer to compromise the lawsuit.  Whether evidence of those activities is admissible is a separate issue from whether the lawsuit fundamentally arises from acts in furtherance of Defendants’ right to petition or statements made in connection with a lawsuit.

Therefore, the Court finds that both causes of action arise from protected litigation activity.

2.     Likelihood Plaintiff will Prevail on the Merits

a.     Malicious Prosecution

“A plaintiff must plead and prove three elements to establish the tort of malicious prosecution: a lawsuit “(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.”  (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 872–873.)

                                                           i.     Legal Termination Favorable to Plaintiff

“The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused, and coupled with the other elements of lack of probable cause and malice, establishes the tort, that is, the malicious and unfounded charge ... against an innocent person.”  (Minasian v. Sapse (1978) 80 Cal.App.3d 823, 826,  quoting Jaffe v. Stone (1941) 18 Cal.2d 146, 150.)  Thus, with respect to a dismissal or other termination without a trial on the merits, “If it is of such a nature as to indicate the innocence of the accused, it is a favorable termination sufficient to satisfy the requirement.  If, however, the dismissal is on technical grounds, for procedural reasons, or any other reason not inconsistent with his guilt, it does not constitute a favorable termination.”  Defendants point out that a dismissal “on technical grounds, for procedural reasons, or for any other reason not inconsistent with his guilt” does not constitute a “favorable termination.”  (Ibid.) 

Examples of such “technical” or “procedural” terminations include dismissals (1) on statute of limitations grounds; (2) pursuant to a settlement; (3) on grounds of laches; (4) for lack of jurisdiction; (5) for mootness; (6) for lack of standing; (7) for being unripe; and (8) to avoid litigation expenses.  (JSJ Limited Partnership Mehrban (2012) 205 Cal.App.4th 1512, 1524-1525 (hereafter JSJ).) 

As for dismissals to avoid litigation expenses, JSJ relies on Oprian v. Goldrich, Kest & Associates (1990) 220 Cal.App.3d 337 (hereafter Oprian), in support of the proposition that dismissals to avoid litigation expenses are not favorable terminations for purposes of malicious prosecution actions. 

In Oprian, Oprian owned a parcel of land on which the county was interested in developing a senior citizen housing project.  Oprian hired Stern to develop the property for the project.  Ultimately, the county accepted a competing proposal.  Stern attempted to exercise his option to purchase the property.  But Oprian sought instead to sell the property and ultimately did sell the property to a condominium developer and attempted to rescind Stern’s option to purchase the property.

Stern brought suit against Oprian and the condominium developer who purchased the property for specific performance.  Stern then settled with the condominium developer, agreeing to dismiss the specific performance action and withdraw the lis pendens in return for monetary payment.  Oprian was not a party to that settlement and the settlement did not include Stern’s breach of contract claims against Oprian.  Meanwhile, Oprian cross-complained for fraud against Stern.  At trial, the jury returned a verdict in Oprian’s favor on both the complaint and cross-complaint that included punitive damages.

On appeal, at oral argument, the appellate court inquired of Stern if he would re-try the complaint in the event the appellate court reversed the jury’s verdict on the fraud count alleged in the cross-complaint.  Stern’s counsel represented that under those circumstances, he would forego the further attorneys’ fees and inconvenience of a second trial, although he still believed his claim against Oprian to be meritorious.  Consistent with these statements, Stern then dismissed the operative complaint.

Oprian then filed a complaint for malicious prosecution and civil conspiracy against Stern.  Stern moved for summary judgment on the grounds that the underlying action did not result in a favorable determination to Oprian.  The trial court granted Stern’s motion for summary judgment.  The appellate court affirmed, finding that the remarks made at oral argument that the dismissal was to save the expense and inconvenience of a second trial, although Stern believed his case to be meritorious, demonstrated the dismissal was not favorable to Oprian for purposes of his malicious prosecution action.

Here, the underlying lawsuit, which is the subject of this action, was brought by Defendant Katzoff, who was represented by Defendants Michael E. Schwimer of Schwimer Weinstein LLP against Plaintiff and several other parties, styled Katzoff v. Kamrany, case number 21SMCV01688.  Defendants, herein, voluntarily dismissed the underlying lawsuit with prejudice on May 14, 2024.  (Ex. 9 to Ameli Decl.)

Defendants argue that this was not a dismissal favorable to Plaintiff because Defendants learned through Plaintiff’s discovery responses that Plaintiff had destroyed the computers that contained documents belonging to Nake and Pamir, LLC, which could have reflected a basis for Plaintiff’s personal liability.  As such, pursuing a forensic examination of the sole remaining (but wiped) hard drive and a site inspection of the property in which the documents had been stored would be expensive and impractical.  Meanwhile, Katzoff settled with the other defendants for the policy limits.  Thus, Defendants contend that the decision to dismiss Katzoff’s claims against Plaintiff represented a practical economic decision in light of the full policy limit settlement with the remaining defendants, against which any judgment against Plaintiff would have been setoff, and the costliness of reconstructing destroyed evidence to pursue claims solely against Plaintiff.  (Schwimer Decl. ¶¶ 20, 25.)

Plaintiff insists that the dismissal was favorable.  Specifically, Plaintiff argues that the computers in question simply deteriorated with age and were thrown away in the normal course, not intentionally spoliated.  Further, Plaintiff explains that she refused to agree to her dismissal without prejudice in exchange for a waiver of costs, because Defendants could simply add her back to the lawsuit later, and she would have needlessly waived her entitlement to costs.  For that reason, she insisted upon $15,000 in exchange for the dismissal and agreement to waive costs.  Similarly, Plaintiff maintains that she was never an owner, landlord, or manager of the subject property, nor was she a shareholder of Pamir, LLC, and that’s why she insisted on going to trial instead of agreeing to the 998 settlement for the full $500,000 policy limits with the rest of the defendants.  As such, from Plaintiff’s point of view, her dismissal with prejudice represented a favorable termination.

Here, the Court finds that the primary impetus for Defendants’ dismissal of Plaintiff was Katzoff’s settlement with the remaining defendants for the insurance policy limits, which severely limited the gains to continuing the underlying lawsuit against Plaintiff.  Although Plaintiff was not a party to that settlement, any recovery Katzoff obtained against Plaintiff would be set off by the $500,000 settlement Katzoff obtained from the other defendants.  Further, Defendants faced high costs and difficulty obtaining evidence from lost, destroyed, and/or wiped computer hard drives (regardless of whether they were intentionally spoliated or simply deteriorated over time) and physical records kept in a dilapidated building.  Thus, as a practical matter, any recovery they obtained at trial would not only need to exceed $500,000, but exceed that figure by the high costs and attorneys’ fees they incurred preparing for and going to trial just for Defendants to break even.

“Generally, a dismissal resulting from a settlement does not constitute a favorable determination because ‘... the dismissal reflects ambiguously on the merits of the action as it results from the joint action of the parties, thus leaving open the question of defendant's guilt or innocence.  After all, ‘[t]he purpose of a settlement is to avoid a determination of the merits.”  (Dalany v. American Pacific Holding Corp. (1996) 42 Cal.App.4th 822, 827 [cleaned up].)

Similarly here, although Plaintiff did not settle with Katzoff, Plaintiff’s liability in the underlying lawsuit remains ambiguous.  While Plaintiff staunchly contends that she never had any legal responsibility for the subject property, as discussed more fully below, Defendants vehemently disagree, arguing that the March 18, 2022 letter Plaintiff sent to Defendants in response to Defendants’ letter to Pamir, LLC and the Estate of Nake Kamrany demonstrates Plaintiff was acting as an agent for Pamir and/or the Estate of Nake Kamrany as it pertained to the subject property, and their forensic examination of the remaining hard drive and physical records was likely to show more such evidence.

Ultimately, because the case was dismissed due to Katzoff’s settlement with the remaining defendants and Defendants’ desire to avoid further litigation costs in light of that settlement, Plaintiff’s underlying liability remains ambiguous, and the Court cannot say the dismissal represented a termination favorable to Plaintiff for purposes of her malicious prosecution claim.

                                                          ii.     Brought Without Probable Cause

Plaintiff asserts that there was no probable cause to name Plaintiff in the underlying lawsuit because Defendants knew at the time they named her that she was not the owner, manager, or landlord of the property, and they knew that it was actually Michael, Fahin, and Lilia.  Further, Defendants knew that Nake was the sole manager and member of Pamir, LLC, not Plaintiff.  As such, Defendants admitted in October 2023 that they had no evidence of Plaintiff’s liability, and they did not bother to include her in any settlement negotiations or request information from her about insurance coverage for the matter.

Defendants contend they had probable cause to name Plaintiff due to her relationship to the owners of the property and because she sent a letter to Defendants’ counsel on March 18, 2022 in response to their January 3, 2022 letter to Pamir, LLC and the Estate of Nake Kamrany.  Plaintiff’s letter informed counsel that ownership of the subject property was transferred from Nake M. Kamrany to Michael Shair Kamrany and Lilia Joy Jackson on December 21, 2019 through a Quit Claim Deed, which Plaintiff attached to the letter, and indicated that Michael Kamrany is the proper owner of the building to pursue in the lawsuit.  Plaintiff’s letter further requested that Pamir, LLC, which Plaintiff characterized as “a now inactive entity” and the Estate of Nake Kamrany be dismissed from the lawsuit.  (Defendants’ Exhibit 9.) 

Under these circumstances, Plaintiff’s letter demonstrates that she has/had intimate knowledge of property’s ownership transfer in late 2019, as well as copies of the quit claim deed, Pamir’s inactive corporate status, and the apparent authority to speak on behalf of both Pamir and estate of Nake Kamrany.  Under these circumstances, the Court cannot say that Defendants lacked probable cause to name Plaintiff in the underlying lawsuit. 

                                                        iii.     Initiated with Malice

Malice requires a showing of actual ill will or improper ulterior motive.  (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 494; Daniels v. Robbins, supra, 182 Cal.App.4th at p. 224.)  Although “[a] lack of probable cause is a factor that may be considered in determining if the claim was prosecuted with malice, […] the lack of probable cause must be supplemented by other, additional evidence.”  (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218.)  Notwithstanding, “[s]ince parties rarely admit an improper motive, malice is usually proven by circumstantial evidence and inferences drawn from the evidence.”  (Ibid.)

Plaintiff reiterates her position that Defendants brought the underlying suit against her without any probable cause and on this contention alone theorizes that Defendants named Plaintiff for the purpose of bullying and intimidating her into a settlement when she had no underlying liability.

However, as discussed above, the Court finds that the March 18, 2022 letter Plaintiff sent to Defendants created sufficient probable cause for them to name her in the underlying lawsuit.  As such, Plaintiff has not adequately supported an inference that Defendants named Plaintiff in the underlying lawsuit out of ill will or for an improper purpose.

b.     Abuse of Process

“[T]o establish a cause of action for abuse of process, a plaintiff must plead two essential elements: that the defendant (1) entertained an ulterior motive in using the process and (2) committed a wilful act in a wrongful manner.”  (State Farm Mutual Automobile Ins. Co. v. Lee (2011) 193 Cal.App.4th 34, 40.)

As discussed above, because Plaintiff has not adequately supported an inference that Defendants acted with an ulterior motive, Plaintiff has similarly not demonstrated a likelihood of success on the merits of her abuse of process cause of action.

CONCLUSION AND ORDER

Therefore, the Court finds that both of Plaintiff’s claims arise from protected litigation activity and that Plaintiff has not demonstrated a likelihood of success on the merits because (1) Defendants’ voluntary dismissal of the underlying action was not a termination in Plaintiff’s favor for purposes of malicious prosecution, (2) Defendants had probable cause to name Plaintiff in the underlying action, and (3) Plaintiff failed her burden of proof to support an inference that Defendants acted with ill will or for an improper purpose. 

As such, the Court grants Defendants’ special motion to strike (Anti-SLAPP) pursuant to Code of Civil Procedure section 425.16. 

Further, Defendants shall file and serve proposed Orders in conformity with the Court’s ruling on or before June 16, 2025. 

Further Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED: June 9, 2025                                                                        ___________________________

Michael E. Whitaker

                                                                                    Judge of the Superior Court