Judge Ronald F. Frazier, Case 37-2022-00038444-CU-NP-CTL 2023-10-13 Tentative Ruling

Judge: Ronald F. Frazier, Case: 37-2022-00038444-CU-NP-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 12, 2023

10/13/2023 08:30:00 AM C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Ronald F. Frazier

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Civil - Unlimited Non-PI/PD/WD tort - Other SLAPP / SLAPPback Motion Hearing 37-2022-00038444-CU-NP-CTL PHANICHKUL VS YENG [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for SLAPP, 12/21/2022

As to Defendants' Special Motion to Strike Plaintiff's Complaint Pursuant to Code of Civil Procedure Section 425.16, the court will hear this matter. (ROA 28.) This is a malicious prosecution action. Defendants move to strike the entire Complaint pursuant to the anti-SLAPP statute. (Code Civ. Proc. § 425.16.) An anti-SLAPP motion involves a two-prong analysis, with the court first considering whether Plaintiff's claim arises from some protected activity. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) Defendants bear the burden of proof on the first prong of the analysis. (Ibid.) Here, Plaintiff admits the first prong of the analysis is met, and the court agrees. '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.' (Lee v. Kim (2019) 41 Cal.App.5th 705, 719.) Accordingly, the court proceeds to the second prong.

With regard to the second prong of the anti-SLAPP analysis, it is Plaintiff's burden to establish, with admissible evidence, Plaintiff has a probability of prevailing on the challenged causes of action. (Code Civ. Proc. § 425.16(b)(1).) Here, Plaintiff has asserted a single claim for malicious prosecution.

'To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].' (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50 (en banc).) The 'Underlying Action,' Case No. 19-56185 styled as Yeng Midas Touch, Inc. v. Phanichkul, was filed by Yeng Midas Touch, Inc. ('YMT') against Tanachai 'Eddie' Phanichkul. The First Amended Complaint in the Underlying Action stated causes of action against Phanichkul for 1) Interference with Prospective Economic Advantage, 2) Conversion, 3) Violation of the Computer Data Access and Fraud Act, 4) Negligence, 5) Breach of Contract, and 6) Fraud. Before the case was submitted to the jury, YMT dismissed its causes of action for intentional interference with prospective economic advantage and fraud. (ROA 1, Compl. at Exh. A, p. 2.) After the jury trial, judgment was entered in favor of Phanichkul on all remaining causes of action. (Id. at p. 3.) It is undisputed the Underlying Action was commenced by or at the direction of Defendants and was pursued to a legal termination in Plaintiff Phanichkul's favor.

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3016378 12 CASE NUMBER: CASE TITLE: PHANICHKUL VS YENG [IMAGED] 37-2022-00038444-CU-NP-CTL The parties dispute whether Defendants had probable cause to bring the Underlying Action. As to this issue, the court will hear this matter.

'[W]hen... there is no dispute as to the facts upon which an attorney acted in filing the prior action, the question whether there was probable cause to institute the prior action is purely a legal question, to be determined by the trial court on the basis of 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 (en banc).) 'Probable cause, for purposes of a malicious prosecution action, is a legal issue, not a factual one.' (Wilson v. Parker, Covert & Chidester (2002) 28 Ca.4th 811, 825.) Whether a litigant had probable cause to bring an action depends on whether it was 'arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable attorney would have thought the claim tenable.' (Wilson at p. 824.) '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 v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 (citation omitted).) Here, Plaintiff contends there is a conflict of the evidence as to whether Defendants had reasonable cause to believe the facts upon which the Underlying Action was based, or whether the Defendants knew the factual allegations were false and filed the Underlying Action for the purpose of pressuring Plaintiff into dropping his separately-filed action against Defendants (referred to as the 'Skrewball Action,' wherein Plaintiff was asserting he had an equity interest in a joint venture known as Skrewball).

Defendants assert probable cause has been established as a matter of law because the court, in the Underlying Action, denied Plaintiff's motion for cost of proof sanctions. This court is not persuaded. As a preliminary matter, Defendants cite no legal authority to support this assertion. Second, the issue in a motion for cost of proof sanctions is whether a responding party failed to admit the truth of any specific, discrete matter it was requested to admit in discovery, which the requesting party subsequently proves.

(Code Civ. Proc. § 2033.420(a).).) This differs materially from the inquiry into whether a filing party had probable cause to file a lawsuit.

In support of his opposition to this motion, Plaintiff has – instead of appropriately identifying and including only evidence that is relevant to his opposition – inappropriately submitted what appears to be the entire record for his appeal of the denial of his motions for attorneys fees in the Underlying Action.

The record is thousands of pages long. Relatively few of those pages are cited in Plaintiff's opposition.

Plaintiff's counsel is admonished not to repeat this mistake.

Defendants are admonished not to cite unpublished appellate opinions in future briefing. (See Def.

Reply at p. 4, fn. 3.) The unpublished opinion is not citable legal authority. (Cal. R. Court, rule 8.1115(a).) Defendants' requests for judicial notice are granted. (ROA 34, 83.) As to Defendants' unopposed Motion to Strike Portions of Plaintiff's Complaint Pursuant to Code of Civil Procedure Sections 435 & 436, the court intends to order it OFF CALENDAR as MOOT if the anti-SLAPP motion is granted, or GRANT it without leave to amend if the anti-SLAPP motion is denied.

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