Judge: Yolanda Orozco, Case: 22STCV28350, Date: 2023-01-17 Tentative Ruling
Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.
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Case Number: 22STCV28350 Hearing Date: January 17, 2023 Dept: 31
SPECIAL MOTION TO STRIKE COMPLAINT
UNDER CCP § 425.16 (ANTI-SLAPP)
TENTATIVE RULING
defendants’ Special Motion to Strike Plaintiff’s Complaint as an unlawful Strategic Lawsuit Against Public Participation (“SLAPP”) is GRANTED.
Background
On August 08, 2022, Plaintiff Michael Milosh filed a Complaint against Gibbs Law LLP; Karen Barth Menzies; Greenberg Gross LLP; Deborah S. Mallgrave; Brian L Williams; Jemma E. Dunn (collectively Defendants) and Does 1 to 10 for Malicious Prosecution.
On November 11, 2022, Defendants filed a special motion to strike (Anti-SLAPP).
Plaintiff filed opposing papers on January 04, 2023.
The Defendants filed a reply on January 10, 2023.
Code of Civil Procedure section 425.16 sets forth the procedure governing anti-SLAPP motions. In pertinent part, the statute provides: “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).) “[A]n anti-SLAPP motion, like a conventional motion to strike, may be used to attack parts of a count as pleaded.” (Baral v. Schnitt¿(2016) 1 Cal.5th 376, 393.) The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech. (Code Civ. Proc., § 425.16, subd. (a); Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)
Courts employ a two-step process to evaluate anti-SLAPP motions. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) To invoke the protections of the statute, the defendant must first show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech. (Id.) From this fact, courts “‘presume the purpose of the action was to chill the defendant’s exercise of First Amendment rights. It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.’” (Id.) In determining whether the plaintiff has carried this burden, the trial court considers “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); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)
REQUEST FOR JUDICIAL NOTICE
The Court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)
Defendants request Judicial Notice of the following:
1) The documents filed in the matter of Alexa Nikolas v. Michael Milosh, Los Angeles County Superior Court Case No. 21STCV31419:
a. Complaint filed August 25, 2021, a copy of which is attached to the concurrently filed Compendium of Exhibits as Exhibit D.
b. Stipulation to Stay Proceedings filed February 3, 2022, a copy of which is attached to the concurrently filed Compendium of Exhibits as Exhibit F.
c. Order denying Stipulation to Stay Proceedings filed February 22, 2022, a copy of which is attached to the concurrently filed Compendium of Exhibits as Exhibit G.
d. Notice of Demurrer and Demurrer filed March 14, 2022, a copy of which is attached to the concurrently filed Compendium of Exhibits as Exhibit H.
e. Signed Complaint filed August 25, 2021, a copy of which is attached hereto as Exhibit J.
f. Request for Dismissal filed May 23, 2022, a copy of which is attached to the concurrently filed Compendium of Exhibits as Exhibit I.
g. Proof of Personal Service filed October 25, 2021, a copy of which is attached hereto as Exhibit K.
2) The Stipulated Judgment filed in the matter of Alexa Nikolas v. Michael Milosh, Los Angeles County Superior Court Case No. 18STFL05937, a copy of which is attached to the concurrently filed Compendium of Exhibits as Exhibit E
Defendants’ request for Judicial Notice is GRANTED.
EVIDENTIARY OBJECTIONS
Defendants submit Evidentiary Objections to the Declaration of Michael Milosh filed in Opposition to this Motion.
The objection is SUSTAINED.
Plaintiff submits Evidentiary Objections to the Declarations of Deborah S. Mallgrave and Jemma E. Dunn.
Objections Nos. 1, 3, 4, 9, 14, and 19 are OVERRULED.
Objections Nos. 2, 5, 6, 7, 8, 10, 11-13, 15- 18, and 20 are SUSTAINED.
The Court admits Alexa Nikolas’ open letter posted on Instagram and the Rolling Stone articles for the limited purpose of showing that Nikolas made public allegations against Plaintiff prior to the filing of the complaint in the underlying action and that Defendants relied on the open letter prior to the filing of the complaint. However, the contents of the open letter and the Rolling Stone articles are not admissible for their truth.
Discussion
Statement of Facts
Plaintiff and former child actress, Alexa Nikolas (“Nikolas”) were previously married and are now divorced. On May 17, 2019, both Plaintiff and Nikolas signed a Stipulated Judgment that contained a general release of all claims either Plaintiff or Ms. Nikolas may have against each other. (See Mot. Ex. E.)
a. The Underlying Action
On August 25, 2021, Nikolas filed a Complaint against Plaintiff alleging causes of action for (1) Sexual Battery; (2) Gender Violence; (3) Intentional Infliction of Emotional Distress; and (4) Violation of the California Tom Bane Civil Rights Act. (Defendant’s RJN Ex. J [LASC Case No. 21STCV31419].) Nikolas’ complaint alleged that her marriage to Plaintiff was the result of being groomed as a minor and that she was sexually abused by Plaintiff. (Id.)
Nikolas’ Complaint was preceded by an open letter posted on Instagram that Nikolas published titled “Groomed by the Groom” alleging that Nikolas’ was abused and groomed by Plaintiff. (Mot. Ex. A.) Nikolas’ accusations against Plaintiff were also published in a Rolling Stone article entitled “Rhye Accused of Sexual Abuse, Assault, Grooming by Ex.-Wife” on March 16, 2021. (Mot. Ex. B.) Plaintiff allegedly responded to the article in Rolling Stone in a piece titled “Rhye’s Michael Milosh Calls Abuse Allegations ‘Outrageous False Claims’.” (Mot. Ex. C.)
In July 2021, the case was referred to the Defendants. (Mallgrave Decl. ¶ 4.) On May 23, 2022, Nikolas’ request for dismissal of her action against Plaintiff was granted. Neither party disputes that the dismissal was due to the general release contained in the Stipulated Judgment in the divorce action.
b. This Subsequent Action
On August 30, 2022, Plaintiff filed this instant action alleging a single cause of action for malicious prosecution against Defendants Gibbs Law LLP; Karen Barth Menzies; Greenberg Gross LLP; Deborah S. Mallgrave; Brian L Williams; Jemma E. Dunn (collectively Defendants), who were involved in filing the underlying action on behalf of Nikolas.
Defendants now bring a special motion to strike (Anti-SLAPP) Plaintiff’s Complaint, which Plaintiff opposes.
I. First Prong: Challenged Action Arises from a Protected Activity
“In ruling on a defendant's anti-SLAPP motion, the trial court engages in a two-step analysis.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) First, the court determines “whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity,” which includes defendants’ right of petition, or free speech, under a constitution, in connection with issues of public interest. (Id.; Code civ. Proc., § 425.16, subd. (e).
Defendants argue that because the cause of action for malicious prosecution arises out of the filing of the underlying lawsuit, this suit arises from a protected activity as a matter of law. “The filing of lawsuits is an aspect of the First Amendment right of petition.” (Soukup, supra, 39 Cal.4th at 291; see also Daniels v. Robbins (2010) 182 Cal.App.4th 204, 214–215.) Accordingly, Defendants argue that they have met the first prong of the Anti-SLAPP analysis and the burden shifts to Plaintiff to show he has a probability of prevailing on his malicious prosecution claim.
Plaintiff argues that Defendants have not shifted the burden to Plaintiff as to the first prong of the Anti-SLAPP analysis because Defendants engaged in extortion, an illegal activity that is not covered by the Anti-SLAPP statute. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 328 [“Extortion is not a constitutionally protected form of speech”.].)
In Flatley, the plaintiff had received a demand letter from defendant Mauro, an attorney, threatening to publicly expose Flatley’s alleged rape of Mauro’s client if a case was not settled by paying a sum to Mauro’s client. (Flatley, supra, 39 Cal.4th at 329.) The plaintiff in Flatley brought an action against various defendants, including Mauro. (Id. at 306.) Mauro responded by filing an anti-SLAPP Motion. (Id.) The California Supreme Court found that Mauro had engaged in extortion as a matter of law and that his actions were not protected by the Anti-SLAPP statute:
“Evaluating Mauro's conduct, we conclude that the letter and subsequent phone calls constitute criminal extortion as a matter of law. These communications threatened to ‘accuse’ Flatley of, or ‘impute to him,’ ‘crime[s]’ and ‘disgrace’ (Pen. Code, § 519, subds.2, 3) unless Flatley paid Mauro a minimum of $1 million of which Mauro was to receive 40 percent. That the threats were half-couched in legalese does not disguise their essential character as extortion.”
(Id. at 330.)
Plaintiff here has not set forth sufficient evidence to show that Defendants engaged in extortion or that they engaged in prelitigation conduct that constitutes extortion. There is no demand letter, no offer of settlement, and no threats to make Nikolas’ allegations public unless payment is made.
Plaintiff alleges that evidence of extortion can be found in an unfiled complaint that was leaked to the press before the complaint was filed and a website created by Defendants to generate “media buzz” about the lawsuit. (Milosh Decl. ¶¶ 8, 9; Ex. B, C.) However, Plaintiff does not state that Defendants made demands for money or settlement prior to engaging in this conduct. Plaintiff does not state that Defendants made any threats or demands outside of Nikolas’ complaint. Therefore, there is no evidence that Defendants tried to extort money from Plaintiff.
Plaintiff admits that Nikolas’ allegations against Plaintiff had already been made public by the time Nikolas filed her complaint. The accusation that Defendants filed Nikolas’ complaint without probable cause and for a malicious reason, is not evidence of extortion. Plaintiff’s allegation that Defendants somehow encouraged Nikolas to make her accusations against Plaintiff public before filing her complaint in an effort to extort a settlement from Plaintiff is not sufficient to support a claim for extortion. Plaintiff fails to offer sufficient evidence that Defendants engaged in conduct amounting to extortion outside of the filing of Nikolas’ complaint.
For the reasons stated, the Court finds that Defendants have met their burden of showing that this action arose from a protected activity, the filing of a lawsuit in the underlying action.
II. Second Prong: Plaintiff’s Reasonable Probability of Success on the Merits
Since Defendants met their burden, the burden shifts to Plaintiff to show that there is a probability of prevailing on his malicious prosecution claim.
“The plaintiff need only establish that his or her claim has ‘minimal merit’ [citation] to avoid being stricken as a SLAPP.” (Soukup, supra, 39 Cal.4th at 291.) “The trial court merely determines whether a prima facie showing has been made that would warrant the claim going forward.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) “The court considers the pleadings and evidence submitted by both sides, but does not weigh credibility or compare the weight of the evidence. Rather, the court's responsibility is to accept as true the evidence favorable to the plaintiff (Citation) and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law. (Citation.) The trial court merely determines whether a prima facie showing has been made that would warrant the claim going forward. (Id. at 212.)
In opposing an anti-SLAPP motion, the plaintiff cannot rely on the allegations of the complaint but must produce evidence that would be admissible at trial. (Citation.) Thus, declarations may not be based upon ‘information and belief’ (Citation) and documents submitted without the proper foundation are not to be considered. (Citation.).” (HMS Capital, supra, 118 Cal.App.4th at 212.)
a. Inadmissible Hearsay
The Court notes that Plaintiff’s reliance on Nikolas’ prior statements in an interview with Verse Magazine are inadmissible hearsay as Nikolas is not a party in this case and the magazine article has not been authenticated. (Milos Decl. ¶ 6, Ex. A.) This is also the reason why the contents of Nikolas’ open letter posted on Instagram and the Rolling Stone articles are also inadmissible hearsay. Similarly, Plaintiff’s references to the website posted on the Defendants’ website (Gibbs Law LLP) regarding the underlying action, are also inadmissible because a foundation has not been sufficiently laid in order to make the information admissible under Evidence Code sections 1340 or 1271.) (People v. Mooring (2017) 15 Cal.App.5th 928, 941 [“Meldrum's testimony established the necessity, reliability, and trustworthiness of the information on the Ident-A-Drug Web site. We conclude the Ident-A-Drug Web site comes within the published compilation exception to the hearsay rule codified in Evidence Code section 1340.”]; see also Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 798 [court had the discretion to admit the contents of a website under the business records hearsay exception if the foundation is properly laid.].) Lastly, the references to a text message from Nikolas are also inadmissible hearsay. (See People v. Perez (2017) 18 Cal.App.5th 598, 621 [“Brown's texts do not constitute hearsay because he testified at trial and authored his own text messages.”].)
Malicious Prosecution
“In an action for malicious prosecution, the plaintiff must establish that the prior underlying action (1) was commenced by or at the direction of the defendant, or the defendant continued to prosecute it after discovering it lacked probable cause, and it was pursued to a legal termination in plaintiff's favor; (2) was brought without probable cause; and (3) was initiated with malice.” (HMS Capital, supra, 118 Cal.App.4th at 213.)
1) Favorable Termination of Underlying Action in Plaintiff’s Favor
Plaintiff argues that he can meet the first element of a malicious prosecution claim because the underlying action was voluntarily dismissed by Nikolas. It is undisputed that Defendants voluntarily dismissed the underlying action. “A voluntary dismissal is presumed to be a favorable termination on the merits unless proved otherwise to a jury because the natural assumption is that one does not simply abandon a meritorious action.” (Olivares v. Pineda (2019) 40 Cal.App.5th 343, 354; Medley Capital Corp. v. Security National Guaranty, Inc. (2017) 17 Cal.App.5th 33, 47 [“A voluntary dismissal, even one without prejudice, reflects on the merits. Although not res judicata, it is generally a favorable termination.”)
Defendants argue that they were forced to dismiss the underlying lawsuit “because there was insufficient time to have the Stipulated Judgment set aside in family court.” (Mallgrave Decl. ¶ 13; Mot. Ex. I [Request for Dismissal].) Defendants state that after the dismissal was entered, they did not continue to prosecute the case or seek to set aside the Stipulated Judgment in the divorce action.
Defendants argue that the dismissal was sought after the judge in the underlying action, denied the parties’ Stipulation to Stay Proceedings until Nikolas moved to set aside the Stipulated Judgment in the divorce action on February 22, 2022. (Mot. Ex. F.) Defendants moved to dismiss the action without prejudice on May 23, 2022, about two months after Plaintiff filed his demurrer to the underlying action, asserting that it was barred by the Stipulated Judgment. (Dunn Decl. ¶ 12, Ex. H.)
Regardless of the Defendants’ reasons for seeking a voluntary dismissal, there is no dispute that the underlying action was dismissed. Moreover, the Defendants’ argument that the collateral estoppel effect of the Stipulated Judgment did not result in a favorable termination of the underlying action is without merit. Defendants rely on Alston v. Dawe (2020) to argue that collateral estoppel is not a favorable termination, but Alston is unavailing because the facts in Alston are different from the facts in the underlying action since the former case was dismissed on collateral estoppel grounds. (See Alston v. Dawe (2020) 52 Cal.App.5th 706, 716–717 [demurrer was sustained without leave to amend and the trial court granted the motion to strike on collateral estoppel grounds].) Here, the underlying action was voluntarily dismissed and was not dismissed by the court on collateral estoppel grounds.
Defendants argue that the underlying action was dismissed in response to the collateral estoppel effect of the Stipulated Judgment but admit that the hearing on the demurrer to the underlying action never took place. Instead, the Defendants voluntarily dismissed the action.
Therefore, the Court finds that Plaintiff has met the first element of a malicious prosecution claim by showing that a voluntary dismissal of the underlying action was a favorable termination in Plaintiff’s favor.
2) Lack of Probable Cause
“Since probable cause requires a reasonable belief in the validity of the claim asserted, (Citations), the allegations that the action was prosecuted with knowledge of the falsity of the claim are a sufficient statement of lack of probable cause. (Albertson v. Raboff (1956) 46 Cal.2d 375, 382–383.) “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 v. Paetkau (1998) 68 Cal.App.4th 151, 164–165.) “A claim is unsupported by probable cause only if any reasonable attorney would agree that it is totally and completely without merit. (Citations). This rather lenient standard for bringing a civil action reflects ‘the important public policy of avoiding the chilling of novel or debatable legal claims. (Citation.)” (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 776 [interna citations and quotation marks omitted].)
Plaintiff argues that Defendants failed to establish proof of “abuse” or “emotional distress.” (Milosh Decl. ¶ 18.) Plaintiff states that in the underlying action, detailed discovery requests were propounded that asked Defendants to provide any evidence to support Nikolas’ accusations. (Derbarseghian Decl. ¶ 1, Ex. 1.) Defendants requested lengthy extensions to respond, which were granted but Defendants moved to dismiss the underlying action shortly before responses were due. (Id.) Plaintiff alleges that Defendants cannot provide any evidence of abuse or illegal conduct because no such evidence exists. (Id.)
Plaintiff also argues that Defendants refuse to answer whether Nikolas concealed the Stipulated Judgment from Defendants or whether it was Defendants who hid the Stipulated Judgment from the court. (Berbarseghian Decl. ¶ 3.) Plaintiff also argues that the Defendants’ lack of action in setting aside the Stipulated Judgment and moving to dismiss the case is an admission that the underlying action lacked merit.
Defendants assert that they were not aware of the language in the Stipulated Judgment and did not learn of the release until the meet and confer process before the filing of Plaintiff’s demurrer. (Mallgrave Decl. 10.)
Defendants argue that they continued to litigate the case after learning of the Stipulated Judgment because they had sought a Joint Stipulation to stay the action while seeking to set aside the Stipulated Judgment. (Mot. Ex. F.) The stipulation was denied on February 22, 2022. (Mot. Ex. G.) Plaintiff proceeded to file a demurrer on March 14, 2022, set to be heard on September 19, 2002. (Mot. Ex. H.) On May 24, 2022, Defendants moved to dismiss the underlying action. (Mallgrave Decl. ¶ 1; Mot. Ex. I.)
Defendants offer the Declaration of Jemma Dunn as further evidence Defendants believed Nikolas’ claims against Plaintiff had merit. Dunn asserts that prior to the filing of the complaint in the underlying action, Nikolas had already made public statements about the alleged abuse she suffered, including the allegations raised in the open letter posted on Instagram and in a Rolling Stone magazine article. (Mot. Ex. A, B.) Dunn asserts that she “reviewed the open letter prior to filing the Underlying Action.” (Dunn Decl. ¶ 4.)
The Court accepts that Nikolas’ Instagram post and the Rolling Stone magazine articles are inadmissible hearsay, and the contents of the article are inadmissible for the truth of the matters asserted. However, the fact that Dunn read the statements and ascribed them as truthful goes to Dunn’s state of mind in filing the action. Moreover, the Instagram post and the Rolling Stone articles were published before Nikolas’ complaint was filed in the underlying action.
Dunn asserts that she believed, and continues to believe, that Nikolas’ allegations made in the Instagram post are true and were not taken out of context or fabricated. (Dunn Decl. ¶ 7.) Ms. Dunn asserts that she was not aware there was language in the Stipulated Judgment that purported to release Nikolas’ claims for intentional torts and statutory violations against Plaintiff until the meet and confer process. (Dunn Decl. ¶10.) Defendants also provide the declaration of Brian L. Williams who asserts that he too believes Nikolas has a meritorious claim against Plaintiff. (Williams Decl. ¶ 3.)
The Declaration of Deborah S. Mallgrave established that prior to filing the complaint in the underlying action, “Nikolas had already made a series of extensive public statements about the sexual abuse she claimed Milosh perpetrated on her before and during their marriage.” (Mallgrave Decl. ¶ 3.) Mallgrave also reviewed the open letter posted on Instagram before filing the underlying action. (Id. ¶ 4.) Mallgrave asserts that before, during, and at present she continues to believe that Nikola’s claims are true and that she never received information that Nikolas’ allegations were untrue, taken out of context, or fabricated. (Id. ¶ 7.) Mallrave asserts that it is her custom and practice that clients review and approve the Complaint before it is filed. (Id. ¶ 8.) Lastly, Mallgrave asserts that she did not learn about the language of the Stipulated Judgment until Plaintiff’s counsel raised the issue in the meet and confer process before the filing of Plaintiff’s demurrer. (Id. ¶¶ 9, 10.) Defendants also assert that any communications with Nikolas will not be disclosed because the communications were privileged, and the privilege belongs to Nikolas. (Evidence Code § 953.)
The Court finds that Defendants’ declarations are sufficient to establish that Defendants believed Nikolas’ claims were true and that Defendants reviewed Nikolas’ open letter on Instagram, along with the alleged evidence cited in the post, before filing the verified complaint in the underlying action, which Nikolas reviewed and approved. (See Mallgrave Decl. ¶ 8; RJN Ex. J.) Plaintiff fails to present evidence that no reasonable attorney would find Nikolas’ claims to be completely without merit or that the Defendants knew that Nikolas’ claims were false. (See Parrish, supra,3 Cal.5th at 776; Albertson, supra, 46 Cal.2d at 382-383.)
Plaintiff also argues that the Defendants’ anti-SLAPP motion should be denied because there is a dispute of fact regarding the Defendants’ knowledge about the Stipulated Judgment. (See Medley Capital Corp. v. Security National Guaranty, Inc. (2017) 17 Cal.App.5th 33, 48 [if a question of fact exists regarding the defendant’s knowledge, the question must be resolved by a jury before the court can determine the legal question of probable cause.)
Defendants do not deny that they knew about Nikolas’ divorce, only that they were unaware of the language in the Stipulated Judgment and its general release. (See Dunn Decl. ¶ 10; Mallgrave Decl. ¶ 10.) Plaintiff questions the credibility of the Defendants and their assertion that they did not know about the language of the Stipulated Judgment and the fact that it made Nikolas’ case not legally tenable. Plaintiff’s mere assertion that Defendants knew about the general release in the Stipulated Judgment, without more evidence, is insufficient to rebut the Defendants’ assertions that they did not know that the Stipulated Judgment would bar Nikolas’ complaint. (See 1–800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585 [“[T]he defendant's evidence is considered with a view toward whether it defeats the plaintiff's showing as a matter of law, such as by establishing a defense or the absence of a necessary element.”].) Moreover, Defendants argue that the Stipulated Judgment presents a procedural hurdle and provided Plaintiff with an affirmative defense, but it does not mean that Nikolas’ claims were not tenable or that a reasonable attorney would not believe Plaintiff’s claim. “I still believe that Nikolas had meritorious claims against Milosh based on all the pertinent facts. If she is able to overcome the procedural hurdle of the Stipulated Judgment, she may still yet pursue those claims.” (Williams Decl. ¶ 3.)
The Court finds that the Defendants’ knowledge of or lack of knowledge regarding the language in the Stipulated Judgment does not present a question of fact. “Probable cause is a question of law decided by the court. Where the facts are undisputed, the court decides the issue without any submission to the jury. But if the evidence is conflicting, the jury decides the preliminary factual questions on which the probable cause determination is made by the court.” (Maleti v. Wickers (2022) 82 Cal.App.5th 181, 218.)
Plaintiff presents no evidence that the Defendants knew about the general release in the Stipulated Judgment and hid it from the Court. Moreover, the Defendants’ lack of action in setting aside the Stipulated Judgment is not evidence that Nikolas' claims lack merit. Nikolas’ claims need only be tenable at the time of filing, even if Nikolas’ is unlikely to win her claim or the evidence relied upon to file her complaint becomes insufficient as the litigation unfolds. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 742–743 [“‘Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win….’ (Citations.) Accordingly, there is probable cause if, at the time the claim was filed, ‘any reasonable attorney would have thought the claim tenable.’ (Citation.) Plainly, a claim that appears ‘arguably correct’ or ‘tenable’ when filed with the court may nevertheless fail, as LaMarche's did, for reasons having to do with the sufficiency of the evidence actually adduced as the litigation unfolds.”] [internal citations and quotations omitted].)
The Defendants’ declarations regarding their personal knowledge about Nikolas’ allegations and the lack of knowledge about the Stipulated Judgment are sufficient to show that Defendants believed Nikolas’ allegations against Plaintiff had merit and were legally tenable at the time of filing. “A claim is unsupported by probable cause if any reasonable attorney would agree that it is totally and completely without merit.” (Roche v. Hyde (2020) 51 Cal.App.5th 757, 794.) Absent any evidence to rebut this showing, Plaintiff has failed to show that Defendants lacked probable cause in filing the underlying action.
3) Malice
“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.” (Albertson, supra, 46 Cal.2d 383.) “The ‘malice’ element ... relates to the subjective intent or purpose with which the defendant acted in initiating the prior action. [Citation.] The motive of the defendant must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose. [Citation.] The plaintiff must plead and prove actual ill will or some improper ulterior motive.” (Soukup, supra, 39 Cal.4th at 292 [italics original] [internal citations and quotations omitted].)
First, Plaintiff argues that Defendants failed to conduct an investigation and only relied on Nikolas’ claims without finding or investigating the Stipulated Judgment. On the other hand Plaintiff argues that Defendants did investigate, uncovered the Stipulated Judgment and hid it from the Court.
The Court finds that Defendants could rely on Nikolas’ review and approval of the Complaint and the allegations in her Instagram post to file the complaint in the underlying action. The fact that the Defendants’ investigation may have been inadequate or failed to uncover the Stipulated Judgment and its legal effect, does not mean that no investigation took place. Moreover, Plaintiff has failed to show that Nikolas’ claims lacked merit, making the question of the Defendants’ investigation of Nikolas’ claims irrelevant:
“If the court determines that the prior action was not objectively tenable—and thus concludes that the action was brought without probable cause—evidence of the extent of an attorney's legal research may be relevant to the further question of whether the prior action was instituted with malice, but if the court finds that the prior action was in fact tenable, probable cause is established—and the malicious prosecution action fails—without regard to the adequacy or inadequacy of the attorney's legal research efforts.”
(Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 868.)
Other evidence of malice alleged by Plaintiff is that Defendants acted maliciously in naming Plaintiff’s management company and record label without prosecuting the claims against them to strong-arm Plaintiff into paying a settlement. Plaintiff also alleges that Defendants acted maliciously when they leaked the complaint in the underlying action and created a website dedicated to the complaint.
Even if Defendants acted with malice in naming Plaintiff’s management company and record label in the complaint and dedicating a website to the underlying action, Plaintiff’s malicious prosecution claim fails. “If the court finds the existence of probable cause, ‘the malicious prosecution action fails, whether or not there is evidence that the prior suit was maliciously motivated.’” (Maleti, supra, 82 Cal.App.5th at 218, citing Sheldon Appel Co., supra, 47 Cal.3d at 875.)
Since Defendants had sufficient probable cause to file the underlying action, Plaintiff cannot meet the malice element as a matter of law.
For the reasons stated, Plaintiff’s malicious prosecution claim fails and the Defendants’ Anti-SLAPP Motion is GRANTED.
Conclusion
defendants’ Special Motion to Strike Plaintiff’s Complaint as an unlawful Strategic Lawsuit Against Public Participation (“SLAPP”) is GRANTED.
Moving party to give notice.