Judge Michael P. Linfield, Case 23STCV01142 2023-05-08 Tentative Ruling

Judge: Michael P. Linfield, Case: 23STCV01142, Date: 2023-05-08 Tentative Ruling

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SUBJECT: Special Motion to Strike Complaint Pursuant to California Code of Civil Procedure § 425.16

Resp. Party: Plaintiffs James A. Kay, Jr. and Lucky’s Two-Way Radios, Inc.

Defendant Levi Lesches’s Special Motion to Strike Complaint Pursuant to California Code of Civil Procedure § 425.16 is DENIED.

On January 18, 2023, Plaintiffs James A. Kay, Jr. and Lucky’s Two-Way Radios, Inc. filed their Complaint against Defendants Levi Lesches, Lesches Law, Harold Pick, Jay Francis, and Wireless US, LC on a cause of action of malicious prosecution.

On March 28, 2023, Defendant Levi Lesches (“Defendant”) filed a Special Motion to Strike Complaint Pursuant to California Code of Civil Procedure § 425.16 (“Motion”). In support of the Motion, Defendant concurrently filed: (1) Declaration of Jacquese A. Scott; (2) Declaration of Levi Lesches; and (3) Request for Judicial Notice.

On April 11, 2023, Plaintiffs filed their Opposition. Plaintiffs concurrently filed: (1) Request for Judicial Notice; and (2) Evidentiary Objections.

On April 17, 2023, Defendant filed a Reply. Defendant concurrently filed: (1) Supplemental Declaration of Levi Lesches; (2) Evidentiary Objections; (3) Response to Plaintiffs’ Evidentiary Objections; and (4) Proposed Order.

On April 19, 2023, Plaintiffs filed their Sur-Reply. Plaintiffs concurrently filed: (1) Evidentiary Objections; and (2) Response to Defendants’ Evidentiary Objections.

On April 20, 2023, Defendant filed a Request to Strike and/or Disregard Plaintiffs’ Sur-Reply.

On April 28, 2023, Plaintiffs filed their Opposition to Motion to Strike Sur-Reply.

“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.)

“It is well established that the trial court's consideration of additional reply ‘evidence is not an abuse of discretion so long as the party opposing the motion for summary judgment has notice and an opportunity to respond to the new material.’” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 449, quoting Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.)

Defendant requests that the Court strike and/or disregard Plaintiffs’ Sur-Reply because it is not authorized by law and Plaintiffs did not seek or obtain leave of Court. (Request to Strike, p. 2:4–6.)

Plaintiffs oppose the Request to Strike, arguing that the Sur-Reply was proper because Defendant submitted new evidentiary material with the Reply brief. (Opposition to Request to Strike, p. 3:18–20.)

Plaintiffs correctly note that Defendant filed a Supplemental Declaration with the Reply. As this anti-SLAPP motion is potentially dispositive, the Court exercises its discretion and considers both the new evidence in the Reply and the arguments made in the Sur-Reply; this that manner, Defendant has ample opportunity to support his arguments and Plaintiffs have an opportunity to respond to the new material. (Jacobs, supra, at p. 449.)

On April 11, 2023, Plaintiffs filed evidentiary objections to Defendant’s evidence. The following are the Court’s rulings on these evidentiary objections:

Objection
1		OVERRULED
2		OVERRULED
3		OVERRULED
4		OVERRULED
5		OVERRULED
6		OVERRULED

On April 17, 2023, Defendant filed evidentiary objections to Plaintiffs’ evidence. The following are the Court’s rulings on these evidentiary objections:

Objection
1		OVERRULED
2		OVERRULED
3		OVERRULED
4		OVERRULED
5		OVERRULED
6		OVERRULED

On April 19, 2023, Plaintiffs filed an additional evidentiary objection to Defendant’s evidence. The Court OVERRULES that objection.

“While courts take judicial notice of public records, they do not take notice of matters stated therein.” (Herrera v. Deutsche Bank Nat’l Trust Co. (2011) 196 Cal.App.4th 1366, 1375 (citing Love v. Wolf (1964) 226 Cal.App.2d 378, 403.) “When judicial notice is taken of a document, however, the truthfulness and proper interpretations of the document are disputable.” (StorMedia Inc. Super. Ct. (1999) 20 Cal.4th 449, fn. 9, citing Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

Defendant requests that the Court take judicial notice of various items from earlier cases, such as briefs on appeal, transcripts of proceedings, and so on. The Court GRANTS judicial notice of all these items.

Plaintiffs request that the Court take judicial notice of various items, such as records filed with the Nevada Secretary of State’s Office, filings from earlier cases, unpublished decisions of Courts of Appeal, and a copy of the federal Sarbanes-Oxley Act of 2002. The Court GRANTS judicial notice of all these items.

“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.” (Code Civ. Proc., § 425.16, subd. (b)(1).)

“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).)

“A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. The Legislature enacted Code of Civil Procedure section 425.16—known as the anti-SLAPP statute—to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055–56, citations omitted.)

“In light of the foregoing, we may summarize a court's task in ruling on an anti-SLAPP motion to strike as follows. Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Equilon Enters. v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

“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, subject to being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88–89, emphases in original.)

“By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit. Accordingly, every Court of Appeal that has addressed the question has concluded that malicious prosecution causes of action fall within the purview of the anti-SLAPP statute. Courts in our sister states construing similar statues are in accord. . . . For all these reasons, we decline to create a categorical exemption from the anti-SLAPP statute for malicious prosecution causes of action. Accordingly, we hold that this action is not exempt from anti-SLAPP scrutiny merely because it is one for malicious prosecution. If on reflection the Legislature desires to create an exemption for malicious prosecution claims, it may easily do so.” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735, 741, citations omitted.)

Plaintiffs’ sole cause of action is for malicious prosecution. (Complaint, p. 19:14.) Defendant cites Jarrow to argue that the first prong of the anti-SLAPP test is met here. (Motion, p. 13:1–10.) Plaintiff concedes that the allegedly malicious prosecution “satisfies the first step”. (Opposition, p. 7:7.)

Not surprisingly, the Court finds that Defendant meets his burden on the first prong regarding an anti-SLAPP motion.

“To establish a cause of action for malicious prosecution, a plaintiff must prove that the underlying action was (1) terminated in the plaintiff's favor, (2) prosecuted without probable cause, and (3) initiated with malice. A claim for malicious prosecution need not be addressed to an entire lawsuit; it may . . . be based upon only some of the causes of action alleged in the underlying lawsuit.” (Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 333, citations omitted; see also Hart v. Darwish (2017) 12 Cal.App.5th 218, 225.)

“The existence or absence of probable cause is a question of law to be determined by the court from the facts established in the case. The question whether, on a given set of facts, there was probable cause to institute an action requires a sensitive evaluation of legal principles and precedents. This is because counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win. Thus, the court must properly take into account the evolutionary potential of legal principles and determine, in light of the facts known to counsel, whether any reasonable attorney would have thought the claim tenable.” (Id. [cleaned up].)

“Whether an action is legally tenable is adjudged objectively by asking whether ‘any reasonable attorney would agree that the [action] is totally and completely without merit.’” (Hart, supra, at 226, quoting Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 817, legislatively abrogated on other grounds.)

“The malice required in an action for malicious prosecution is not limited to actual hostility or ill will toward plaintiff but exists when the proceedings are instituted primarily for an improper purpose. It has been pointed out that the ‘principal situations in which the civil proceedings are initiated for an improper purpose are those in which (1) the person initiating them does not believe that his claim may be held valid; (2) the proceedings are begun primarily because of hostility or ill will; (3) the proceedings are initiated solely for the purpose of depriving the person against whom they are initiated of a beneficial use of his property; (4) the proceedings are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim.’” (Albertson v. Raboff (1956) 46 Cal.2d 375, 383, legislatively abrogated on other grounds.)

“Malice may be provided directly, or it may be inferred from the fact that the defendant lacked probable cause.” (Jacques Interiors v. Petrak (1987) 188 Cal.App.3d 1363, 1371, citing Weaver v. Super. Ct. (1979) 95 Cal.App.3d 166, 188; see also Roche v. Hyde (2020) 51 Cal.App.5th 757, 826.)

In determining whether Plaintiffs have demonstrated a probability of prevailing on the claim, the Court considers each of the factors necessary for a meritorious cause of action for malicious prosecution.

In its analysis, the Court cites heavily to the “Order Re Defendants’ Motions to Dismiss and Kay Defendants’ Motion for Rule 11 Sanctions [20, 21, 33]” (“Order Dismissing Prior Case”), dated July 7, 2020, Case No. CV 19-7137 DMG (FFMx) in the United States District Court for the Central District of California. (The Order Dismissing Prior Case can also be found as Pick v. Kay (C.D. Cal. 2020) 2020 U.S. Dist. LEXIS 119098 or Pick v. Kay (C.D. Cal. 2020) 2020 WL 12919340.)

In his Motion, Defendant does not discuss the first element for a cause of action for malicious prosecution: prior termination in Plaintiffs’ favor. Plaintiffs argue that they prevailed in the prior case and that Defendant concedes it. (Opposition, p. 6:8–15.) Defendant discusses the issue for the first time in his Reply, arguing that the decisions in the prior case were based solely on an immunity and thus did not constitute Plaintiffs prevailing on the merits. (Reply, p. 6:2–6.) Because the Court has accepted Plaintiffs’ Sur-Reply, the Court considers this argument that was first raised in the Reply.

In 2019, Defendant was counsel of record for other defendants who sued Plaintiffs in the United States District Court for the Central District of California (“District Court”) in Case No. 2:19-cv-07137-DMG-FFM. (Complaint, Exh. G, p. 56.) That case involved a cause of action pursuant to the Racketeer Influence and Corrupt Organizations Act (“RICO”). (Id. at p. 1.)

In that case, the Plaintiffs in this case filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Order Dismissing Prior Case, p. 1.) (The Court notes that other parties [the “Motorola Parties”] were also sued in that prior suit, and that the Motorola Parties filed a separate motion to dismiss, but that the Motorola Parties are not involved in this case. However, the reasoning in the Motorola Parties’ motion to dismiss was cited in District Court’s analysis regarding Plaintiffs’ motion to dismiss.)

The underlying basis for the motion to dismiss involved “the Noerr-Pennington doctrine.” Acccording to the District Court:

The Noerr-Pennington doctrine derives from the First Amendment’s guarantee of the people’s right to petition the government, including the judiciary, for redress. Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 2006). The doctrine extends immunity from statutory liability to those who use the courts in their petitioning conduct, including conduct incidental to litigation. See Cal. Motor Transp. Co. v. Trucking Unltd., 404 U.S. 508, 510–11 (1972); accord Sosa, 437 F.3d at 934–35. While the doctrine first arose in the antitrust context, the Supreme Court has applied the doctrine outside that field. In this Circuit, Noerr-Pennington has been specifically applied to RICO suits. Sosa, 437 F.3d at 932–33. Notably, the doctrine immunizes not only the parties to litigation, but also their agents and representatives, including attorneys. Freeman v. Lasky, Haas & Cohler, 410 F.3d 1180, 1186 (9th Cir. 2005).

To determine whether conduct is immunized under the Noerr-Pennington doctrine, courts follow the three-part test adopted in BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002): “(1) identify whether the lawsuit imposes a burden on petitioning rights, (2) decide whether the alleged activities constitute protected petitioning activity, and (3) analyze whether the statutes at issue may be construed to preclude that burden on the protected petitioning activity.” Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 644 (9th Cir. 2009) (citing BE & K, 536 U.S. at 530–33, 535–37).

The Ninth Circuit has held that there is a “sham” exception to the Noerr-Pennington doctrine: (1) “where the lawsuit is objectively baseless and the defendant’s motive in bringing it was unlawful”; (2) “where the conduct involves a series of lawsuits ‘brought pursuant to a policy of starting legal proceedings without regard to the merits’ and for an unlawful purpose”; and (3) “if the allegedly unlawful conduct ‘consists of making intentional misrepresentations to the court, litigation can be deemed a sham if ‘a party’s knowing fraud upon, or its intentional misrepresentations to, the court deprive the litigation of its legitimacy.’” Sosa, 437 F.3d at 938 (citations omitted); see also Prof’l Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61 (1993) (outlining two-part definition of sham exception and explaining that first, lawsuit must be “objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits” and “[o]nly if challenged litigation is objectively meritless may a court examine the litigant’s subjective motivation.”).

The District Court then agreed with Plaintiffs that they and the Motorola Parties were immunized from liability pursuant to the Noerr-Pennington doctrine because the suit Defendant brought on behalf of his clients was based entirely on Plaintiffs’ and the Motorola Parties’ exercise of their petitioning rights in underlying lawsuits brought against Defendant’s clients. (Order Dismissing Prior Case, p. 6.)

The District Court granted both the Motorola Parties’ motion to dismiss and Plaintiffs’ motion dismiss. (Order Dismissing Prior Case, pp. 9, 10.) The Court also declined to exercise supplemental jurisdiction over a potential state-level cause of action for bribery. (Id. at p. 10.) The Court then dismissed without prejudice the prior case. (Id. at p. 12.)

Plaintiffs also filed a Rule 11 Motion for Sanctions in the earlier case. But due to a failure to comply with all procedural requirements for the motion, the District Court denied the motion, stating that “without deciding the merits of their Rule 11 motion, [Plaintiffs’] failure to satisfy the required procedure prevents the [District] Court from considering Rule 11 sanctions.” (Order Dismissing Prior Case, p. 12.)

The District Court’s opinion decision was affirmed by the Ninth Circuit Court of Appeals in an unpublished decision. (Pick v. Kay (9th Cir. 2022) U.S. App. LEXIS 1766; Pick v. Kay (9th Cir. 2022) 2022 WL 193197.)

Even though the District Court did not reach post-immunity questions, that does not mean there were no decisions on the merits. As will be discussed below regarding the element of probable cause, everything that the District Court decided on the merits in the prior case was decided in favor of Plaintiffs (and the Motorola Parties), and affirmed. Conversely, everything that the District Court decided on the merits in the prior case was decided against Defendant’s clients, and affirmed.

Thus, Plaintiffs have demonstrated a probability of prevailing on the first element of a malicious prosecution claim.

Defendant spends most of his Motion and Reply arguing that there was probable cause in bringing the prior case. Specifically, Defendant argues: (1) that the evidence establishes that Defendant has met his “low threshold” burden to establish probable cause; (2) that Defendant had probable cause to advocate his innovative and creative legal arguments; (3) that the evidence establishes Defendant had probable cause to allege that Plaintiffs violated the Victim Witness Protection Act (“VWPA”) by filing serial lawsuits with the intent to retaliate against Defendant’s client; (4) that the Sarbanes-Oxley Act of 2002 amended, expanded, and established a new ground for a RICO violation; (5) that the facts of Plaintiffs’ alleged unlawful and intentional retaliation against Defendant U.S. Wireless were alleged in the RICO case; and (6) that facts supporting the bribery claim in the RICO case and affirmed by at least three judges. (Motion, pp. 13:23–24, 14:13–14, 17:10–11, 18:17–19; Reply, pp. 7:13–14, 8:12–13, 9:9–10.)

Plaintiff disagrees, arguing: (1) that the underlying RICO claims were frivolous; (2) that the underlying corporate bribery claim was frivolous; (3) that the argument regarding preemption of Noerr-Pennington by Sarbanes-Oxley was not remotely tenable; (4) that the underlying RICO case was maliciously prosecuted; (5) that the Court only needs to find that some of the claims prosecuted were maliciously prosecuted to defeat the Motion; and (6) that there was no evidence of bribery. (Opposition, p. 2:23, 3:20, 5:8, 6:7, 8:4, 9:23–24.) The arguments in the Sur-Reply are: (1) that this Motion has nothing to do with Plaintiffs and everything to do with Defendant’s malicious prosecution; (2) that Sarbanes-Oxley did not explicitly preempt Noerr-Pennington, and no reasonable lawyer would have made that argument; (3) there are still no facts to support any bribery claims; and (4) the retaliation claim is made up of whole cloth. (Sur-Reply, pp. 2:3–4, 2:18–20, 4:1, 6:2–3.)

The reasoning of the District Court and the Ninth Circuit are helpful guidance to Court in considering whether the prior case was brought without probable cause.

The District Court reasoned: (1) that Defendant’s clients’ success in the prior case “would constitute a burden on the Motorola [Parties’] petitioning rights” and that the Motorola Parties “had a First Amendment right to petition the courts by filing the three lawsuits . . . to collect on their judgment”; (2) that “the conduct alleged falls within Noerr-Pennington’s grant of immunity” because “[m]uch of the conduct complained of is pure petitioning activity, such as filing lawsuits and other motions for relief, presenting arguments to the court, and testifying in court”; (3) that “[a] sham exception is inapplicable here” because the Motorola Parties’ limited success in certain cases suggested “that these suits were not frivolous or shams even if they ultimately did not prevail”; (4) that “[c]ases relied upon by [Defendant’s clients] to argue the Motorola [Parties] are estopped from asserting Noerr-Pennington are distinguishable; (5) that neither RICO nor the VWPA . . . authorize the burden that Plaintiffs’ suit would place on the Motorola [Parties’] right to petition the courts . . . [and that there] is nothing in RICO or the VWPA that can be said to proscribe the filing of [the Motorola Parties’] collection lawsuits against [Defendant’s clients]”; and (6) that “[i]t is well settled, however, that [Plaintiffs] have a right to petition the courts by funding suits in which they are not a party.” (Order Dismissing Prior Case, pp. 6–10.)

On this last point, the District Court cited cases from the Ninth Circuit in support of the proposition that Noerr-Pennington immunity extends to individuals who fund litigation but are not themselves party to the litigation. (See Sosa v. DIRECTV, Inc. (9th Cir. 2006) 437 F.3d 923, 937; Liberty Lake Invs. v. Magnuson (9th Cir. 1993) 12 F.3d 155, 157–59.)

Thus, many of Defendant’s arguments are incorrect, while others are irrelevant. The Court addresses each of them, with some arguments addressed simultaneously.

(1) The burden on the second prong of an anti-SLAPP motion is on the non-moving party. Thus, the standard here is whether Plaintiffs can show a probability on the merits that there was no probable cause, not whether Defendant meets a low threshold to establish probable cause.

(2) The issue at hand is not whether there was probable cause to allege violations of RICO, VWPA, or bribery. Those issues were not reached in the prior case. Therefore, the arguments Defendant makes about including such facts in the First Amended Complaint of the prior case are irrelevant. It is also irrelevant whether Sarbanes-Oxley created new grounds for a RICO violation if those grounds did not include a way to overcome the Noerr-Pennington doctrine.

(3) The issue at hand is whether there was probable cause for overcoming the Noerr-Pennington doctrine in the prior case (either because not all the elements were met, because there was an exception, or because the Noerr-Pennington doctrine should have been overturned). This is the relevant question; it would not matter if there was probable cause to allege violations of law if Plaintiffs had Noerr-Pennington immunity. This threshold question — whether Plaintiffs had Noerr-Pennington immunity — was decided on the merits in favor of Plaintiffs and against Defendant’s clients.

(4) Advocating innovative and/or creative legal arguments is not the same as advocating baseless and/or entirely unmeritorious arguments. In the prior case, the District Court, affirmed by the Ninth Circuit, determined that RICO and VWPA did not preempt the Noerr-Pennington doctrine or authorize the burden the prior case placed on the Motorola Parties’ right to petition the Courts and Plaintiffs’ right to fund such petitions. Moreover, these decisions were not matters of first impression. The District Court cited cases for every argument made, as did the Ninth Circuit. Apparently, the Ninth Circuit did not believe it was creating new law, because it chose not publish its opinion.

(5) Although the Sarbanes-Oxley Act of 2002 was not explicitly mentioned by either the District Court or the Ninth Circuit, it was an issue raised by Defendant’s clients in their First Amended Complaint of the prior case. (Complaint, Exh. G, pp. 3, 47, 49.) Again, aware of this argument, the District Court determined that RICO and VWPA did not preempt the Noerr-Pennington doctrine. Given that there is no explicit language in Sarbanes-Oxley that touch on the Noerr-Pennington doctrine, this argument is baseless.

An evaluation of the legal principles and precedents, including those discussed by the District Court and the Ninth Circuit, indicates that the evidence provided supports a determination that no reasonable attorney would have objectively thought the claims brought in the prior case were legally tenable. (Franklin Mint Co., supra, at 333; Hart, supra, at 226.) Defendant’s declaration that he spent hundreds of hours on research of the issue and had a subjectively good faith belief on the issues he argued – even if found credible – does not change the objective analysis here. (See Decl. Lesches, ¶¶ 23–25.)

Thus, Plaintiffs have demonstrated a probability of prevailing on the second element of a malicious prosecution claim.

Defendant argues that there are no actionable allegations or evidence supporting the essential element of malice on the part of Defendant. (Motion, p. 21:18–19.)

Plaintiffs argue that there is more than sufficient evidence of malice to withstand an anti-SLAPP motion. (Opposition, p. 10:21–22.)

Both parties reiterate their arguments in their Reply and Sur-Reply. (Reply, p. 11:1–2; Sur-Reply, p. 4:22–23.)

“For purposes of a malicious prosecution claim, malice ‘is not limited to actual hostility or ill will toward the plaintiff. Rather, malice is present when proceedings are instituted primarily for an improper purpose.’” (Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534, 554, quoting Sierra Club Found. V. Graham (1999) 72 Cal.App.4th 1135, 1157.)

Although malice may be inferred from a lack of probable cause, recent case law indicates in dicta that “absence of probable cause alone is insufficient to establish a prima facie case of malice”. (Roche, supra, at 827, citation omitted.)

Here, the evidence of malice is not merely inferred from the absence of probable cause. Plaintiffs produce evidence that Defendant acted with actual malice (which is itself an improper purpose) and/or malice by instituting proceedings for another improper purpose.

Among other things, Plaintiff submits an email where Defendant states: “Your client can burn all the fees he wants, but I doubt he is getting out of this for anything lower [than $2.66 million.] I think we have also made it clear that we do not view this case as solely a liability for the client.” (Opposition, Exh. D.)

This evidence indicates: (1) that there was another purpose besides liability for the litigation, which could have been malice; (2) that Defendant shared the belief in this purpose and (3) that the case could have been brought with the improper purpose of forcing a settlement with has no relation to the merits of the claim. Given the decades of litigation that both sides have made clear to the Court through their respective Requests for Judicial Notice and various declarations, a trier of fact could reasonably conclude that the other purpose is one of actual malice and/or other improper purpose.

“The statute's second element — a ‘probability of prevailing’ — means a reasonable probability of prevailing, not prevailing by a preponderance of the evidence. For this reason, a court must apply a ‘summary-judgment-like’ test, accepting as true the evidence favorable to the plaintiff and evaluating the defendant's evidence only to determine whether the defendant has defeated the plaintiff's evidence as a matter of law. A court may not weigh credibility or compare the weight of the evidence. The court's single task is to determine whether the plaintiff has made a prima facie showing of facts supporting his or her cause of action.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444, quoting Taus v. Loftus (2007) 40 Cal.4th 683, 714, other citations omitted.)

The actual and inferred evidence presented here is sufficient to make a prima facie showing of malice. Thus, Plaintiffs have demonstrated a probability of prevailing on the third element of a malicious prosecution claim.

Plaintiffs have demonstrated a probability of prevailing on all elements of a malicious prosecution claim. Therefore, Plaintiffs have met their burden on the second prong of the anti-SLAPP motion.

Defendant Levi Lesches’s Special Motion to Strike Complaint Pursuant to California Code of Civil Procedure § 425.16 is DENIED.