Judge Michael P. Linfield, Case 23STCV01142 2023-05-17 Tentative Ruling

Judge: Michael P. Linfield, Case: 23STCV01142, Date: 2023-05-17 Tentative Ruling

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

Defendant Harold Pick’s Special Motion to Strike Plaintiffs’ Complaint 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. (The Court cites Lesches and Lesches Law as one defendant because it appears that Lesches does business as Lesches Law but that Lesches Law is not a separate entity.)

On April 17, 2023, Defendant Harold Pick, in propria persona, filed his Special Motion to Strike Plaintiffs’ Complaint (“Motion”). In support of the Motion, Defendant Harold Pick concurrently filed: (1) Declaration of Harold Pick; (2) Request for Judicial Notice; and (3) POS-050/EFS-050, Proof of Electronic Service.

On May 4, 2023, Plaintiffs filed their Opposition. Plaintiffs concurrently filed: (1) Request for Judicial Notice; (2) Objection to Defendant Harold Pick’s Request for Judicial Notice; and (3) Evidentiary Objection to Declaration of Harold Pick.

On May 8, 2023, the Court denied Defendant Levi Lesches’ Special Motion to Strike Complaint Pursuant to California Code of Civil Procedure § 425.16.

On May 4, 2023, Plaintiffs filed evidentiary objections to Defendant Harold Pick’s (“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
7		OVERRULED
8		OVERRULED
9		OVERRULED

Both Defendant and Plaintiff request that the Court take judicial notice of various items from earlier cases.

“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.)

“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 argues that his prior lawsuit falls under the protection of the United States Constitution or the California Constitution. (Motion, p. 10:9.)

Plaintiff concedes that the allegedly malicious prosecution “satisfies the first step”. (Opposition, p. 6:7–8.)

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, as in this case, 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.

Much of the most direct evidence regarding an allegedly prior malicious prosecution will come from filings and orders associated with that prior prosecution.

To that extent, the Court considers 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.)

Defendant argues that the underlying action was not resolved in Plaintiffs’ favor. (Motion, p. 11:12.) Specifically, Defendant argues that “the underlying action was not terminated on the merits” because the District Court “determined that [the] Noerr-Pennington Doctrine applied.” (Id. at p. 13–14, italics added.)

Plaintiffs disagree, arguing that they prevailed in the earlier case on the merits. (Opposition, p. 7:5–11.)

The Court already discussed the reasons why the earlier case was terminated in Plaintiffs’ favor when the Court considered Defendant Lesches’ Special Motion to Strike. (See Minute Order dated May 8, 2023.) Nothing has changed, and the and the Court incorporates that analysis here.

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

Defendant argues: (1) that Plaintiff does not state facts sufficient to establish probable cause; (2) that the facts of the prior litigations indicate there was probable cause; and (3) that Defendant consulted his attorney (Defendant Lesches), “who based upon the facts that occurred, and the substantiating documentation, determined that an action was viable”. (Motion, pp. 15:24–25, 15:25–28, 16:1–5, 17:2–3.)

Plaintiff disagrees, arguing: (1) that the underlying claims in the prior case were frivolous; (2) that the prior case was maliciously prosecuted; and (3) that there is not enough evidence in the current record to determine whether Defendant has a viable advice of counsel defense. (Opposition, pp. 3:14, 5:16, 7:12, 9:4–5.)

Just as with the first element of the cause of action, the Court already discussed at length the issue of probable cause when the Court considered Defendant Lesches’ Special Motion to Strike. (See Minute Order dated May 8, 2023.) That analysis still applies regarding Defendant’s first two arguments and the Court incorporates that analysis here.

However, the advice of counsel defense was not previously considered. The Court considers it now.

“Good faith reliance on the advice of counsel, after truthful disclosure of all the relevant facts, is a complete defense to a malicious prosecution claim. (Bisno v. Douglas Emmett Realty Fund 1988 (2009) 174 Cal.App.4th 1534, 1544, citing Bertero v. Nat’l Gen. Corp. (1974) 13 Cal.3d 43, 53–54; see also Brinkley v. Appleby (1969) 276 Cal.App.2d 244, 246–48.)

“However, if the initiator acts in bad faith or withholds from counsel facts he knew or should have known would defeat a cause of action otherwise appearing from the information supplied, that defense fails. Similarly, counsel's advice must be sought in good faith and ‘. . . not as a mere cloak to protect one against a suit for malicious prosecution.’ The burden of proving this affirmative defense is, of course, on the party seeking to benefit by it.” (Bertero, supra, at 53–54, quoting Walker v. Jensen (1949) 95 Cal.App.2d 269 274, other citations omitted.)

“The defense of advice of counsel generally waives the attorney-client privilege as to communications and documents relating to the advice.” (State Farm Mut. Aut. Ins. Co. v. Super. Ct. (1991) 228 Cal.App.3d 721, 727, citing Transamerica Tit. Ins. Co. v. Super. Ct. (1987) 188 Cal.App.3d 1047, 1053.)

Defendant has not provided any evidence that he truthfully disclosed all the relevant facts to his counsel or that he acted in good faith reliance on his counsel’s advice. None of the documents Defendant submits as evidence include anything that he sent to his counsel, that his counsel sent to him, or that would otherwise be evidence of his good faith reliance on his counsel’s legal advice. Of course, Defendant holds the attorney-client privilege and was entitled to waive the privilege regarding the advice he allegedly relied upon.

As stated above, the burden of proving this affirmative defense lies with Defendant. Since Defendant is not able to meet his burden without presenting any evidence, Plaintiffs have demonstrated a probability of prevailing on the second element of a malicious prosecution claim.

Defendant argues: (1) that Plaintiffs have not stated facts sufficient to establish malice; and (2) that Defendant did not act with malice. (Motion, pp. 15:24–25, 17:5.)

Plaintiff disagrees, arguing that there is more than sufficient evidence of malice to withstand an anti-SLAPP motion. (Opposition, p. 10:18–19.)

Unlike with the other elements of a claim for malicious prosecution, it would be inappropriate to simply cite to the prior analysis conducted for Defendant Lesches’ Special Motion to Strike. That is because the evidence of malice must be considered for each individual defendant; this is in contrast to determining whether Plaintiffs prevailed in the prior litigation or whether the prior litigation was brought without probable cause.

“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 is not merely inferred from the absence of probable cause. The vast quantity of prior cases between Defendant and Plaintiffs — some cases going back more than two decades — are more than sufficient evidence that Defendant could be acting because of actual malice and/or malice by instituting proceedings for another improper purpose. Indeed, Defendant begins his Motion by calling this action a “war for vindication based on true belief and intent of being wronged” and cites the Hatfields and McCoys — a well-known reference to two Appalachian families who fought and killed each other for decades. (Motion, p. 3:3–4.)

“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.

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

Defendant Harold Pick’s Special Motion to Strike Plaintiffs’ Complaint is DENIED.