Judge: Yolanda Orozco, Case: 22STCV28350, Date: 2023-02-09 Tentative Ruling
Case Number: 22STCV28350 Hearing Date: February 9, 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.
The
Court also awards Defendants $5,760.00 in attorney’s fees and
costs pursuant to Code of Civil Procedure §425.16(c).
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 January 18, 2023, the Court GRANTED Defendants
Greenberg Gross LLP, Deborah S. Mallgrave, Brian L. Williams and Jemma E. Dunn’s
special motion to strike (Anti-SLAPP).
On December 27, 2022, Gibbs Law Group LLP
(erroneously named and sued as Gibbs Law LLP) and Karen Barth Menzies filed a special motion to strike (Anti-SLAPP).
Plaintiff filed opposing papers on January 27, 2023.
The Defendants filed a reply on February 02, 2023.
Legal Standard
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.)
Pursuant to Code of Civil Procedure
section 425.16(c), a prevailing defendant is entitled to recover attorneys’
fees and costs associated with the motion. Under CRC 3.1702 and CRC 8.104, a
request for attorneys’ fees must be made within 60 days of service of the
notice of entry of judgment. A defendant may only recover fees and costs
related to the motion to strike. (Lafayette Morehouse, Inc. v. Chronicle
Publishing Co. (1995) 39 Cal.App.4th 1379, 1383.) This includes fees
associated with bringing the motion for fees. (Ketchum v. Moses (2001)
24 Cal.4th 1122, 1141 (“an award of fees may include not only the fees incurred
with respect to the underlying claim, but also the fees incurred in enforcing
the right to mandatory fees under Code of Civil Procedure section 425.16.”).)
Additionally, “[a]ny fee award must also include those
incurred on appeal. [Citation.]” (Trapp v. Naiman¿(2013) 218 Cal.App.4th
113, 122.)¿
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 I.
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 J.
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.
Defendants also
filed a supplemental request for Judicial Notice of the following:
1)
The following documents filed in the matter of Alexa
Nikolas v. Michael Milosh, Los Angeles County Superior Court Case No.
21STCV31419:
a. The
Signed Complaint filed August 25, 2021, a copy of which is attached hereto as
Exhibit K.
b. Proof
of Personal Service filed October 25, 2021, a copy of which is attached hereto
as Exhibit L
2)
The above-entitled Court’s January 18, 2023 ruling
Granting Defendants Mallgrave’s, Dunn’s, Williams’, and Greenberg Gross’
(collectively “Greenberg Defendants”) Special Motion to Strike Plaintiff’s Complaint
under Code of Civil Procedure §425.16, attached hereto as Exhibit M.
EVIDENTIARY OBJECTIONS
Defendants submit Evidentiary Objections to the
Declaration of Michael Milosh filed in Opposition to this Instant Motion.
The objection is SUSTAINED.
Plaintiff submits Evidentiary Objections to the
Declarations of Karen Barth Menzies filed in support of this motion.
Objections Nos. 1, 3, and 5 are OVERRULED.
Objections Nos. 2, 4, 6, 7, 8, 9, 10, and 11 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 entitled “Rhye’s Michael Milosh Calls Abuse Allegations ‘Outrageous False Claims’.” (Mot. Ex. C.)
In July 2021, the case was referred to the Defendants. (Barth Menzies Decl. ¶ 3.) 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 one 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 Nikolas complaint.
Defendants Gibbs Law Group and Karn Barth Menzies (collectively “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 is on 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.)
Here, Plaintiff has not set forth sufficient evidence to show that Defendants engaged in extortion. Plaintiff does not show that the Defendants 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 show that
Defendants made demands for money or settlement prior to engaging in this
conduct. Plaintiff does not show that Defendants made any threats or demands
outside of Nikolas’ Complaint. In sum, 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 filing Nikolas’ Complaint.
Accordingly, the 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 he has the 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, Plaintiff’s 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.”)
Defendant Barth Menzies asserts
that she was not aware of the release language in the Stipulated Judgment until
defense counsel brought it to her attention at a pre-demurrer meet and confer.
(Barth Menzies Decl. ¶ 12.) Defendant Barth Menzies states that Nikolas was
considering filing a motion in Family Court to set aside the Stipulated
Judgment. (Id.) Barth Menzies asserts she was in discussions with
Plaintiff’s prior counsel to stay the hearing in the underlying action so that
Nikolas could set aside the Stipulated Judgment. (Id. ¶ 13.) Plaintiff
obtained new counsel and a stipulation was signed on February 03, 2022, but was
denied by the Court on February 22, 2022. (Id. ¶¶ 14, 15; Mot. Ex. F, G.)
Nikolas moved to voluntarily dismiss her case on May 24, 2022. (Mot. Ex. J.)
Regardless of Defendants’ reasons for seeking a voluntary dismissal, there is no dispute that the underlying action was dismissed. Moreover, 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. The 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 latter 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 [internal 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 refused 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 argues that 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.
Defendant Barth Menzies asserts that after learning of the release language in the Stipulation and Judgment in the divorce proceeding, she communicated to Plaintiff’s counsel that she had no intention of further prosecuting the case unless and until the Judgment was set aside in family court. (Barth Menzies Decl. ¶ 12, H.) All other actions taken after learning about the Judgment was to try to obtain a stay first by party stipulation and then by possibly noticed motion until Defendants and Nikolas decided to voluntarily dismiss the case. (Id. ¶¶ 16, 18, 19.) Barth Menzies asserts that she believed Nikolas’ claims had merit. (Id. ¶ 22.) Barth Menzies relied on Nikolas’ “open letter” on Instagram, before and during the pendency of the underlying action. She believed Nikolas’ allegations to be true and never received any information to show that the allegations were untrue, taken out of context, or fabricated. (Id. ¶ 8.)
The Court finds that Nikolas’ Instagram post and the Rolling Stone magazine articles are inadmissible hearsay, and the contents of the article are inadmissible. The Court also notes that the Instagram post and the Rolling Stone articles were published before Nikolas’ Complaint was filed in the underlying action and that the publications were considered and relied upon by Barth Menzies. Thus, the information goes to her state of mind in filing the Nikolas Complaint.
Accordingly, Barth Menzies’ declaration is sufficient to establish that Defendants believed Nikolas’ claims and reasonably relied on her representations, including those she made on social media. 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 82-383.)
Plaintiff 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.)
Defendant Barth Menzies asserts that she was not aware of the language in the Stipulated Judgment until it was brought to her attention after the Complaint was filed. (Defendant Barth Menzies ¶ 11.) Plaintiff questions the credibility of the Defendants and their assertions 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 belief that Defendants knew about the general release in the Stipulated Judgment, without more, is insufficient to rebut 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.”].)
Finally, Defendants argue that the Stipulated Judgment presented a procedural hurdle in the underlying case and provided Plaintiff with an affirmative defense, but did not establish that Nikolas’ claims were not tenable or that a reasonable attorney would not believe Plaintiff’s claim. The Court agrees.
The Court finds that 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 that information from the Court. Barth Menzies asserts that the decision to move to set aside the Judgement was left to Nikolas if she wanted to spend the time and work with family law attorneys and potential experts to set aside the Judgment. (Barth Menzies Decl. ¶ 19.) Moreover, Nikolas’ claims need only be tenable at the time of filing, even if Nikolas’ was 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].)
“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 Defendants’
evidence, Plaintiff has failed to show that Defendants lacked probable cause in
filing the underlying action or that they could not rely on Nikolas’
representations when they filed the Complaint.
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. Plaintiff also takes the position, however, that Defendants did investigate and uncovered the Stipulated Judgment and hid it from the Court.
The Court finds that Defendants could rely on Nikolas’ representations and her “open letter” on Instagram to file the Complaint in the underlying action because they believed it had merit. (Barth Menzies Decl. ¶¶ 8, 22.) The fact that Defendants’ investigation may have been inadequate or failed to uncover the Stipulated Judgment and its legal effect before the Complaint in the underlying action was filed, is not evidence of malice.
“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 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 probable cause in filing the underlying action, Plaintiff cannot meet the malice element as a matter of law.
Accordingly, Plaintiff’s malicious prosecution claim fails, and the Defendants’ Anti-SLAPP Motion is GRANTED.
Request for Attorney’s Fees
Plaintiff asserts that if the Court is inclined to award
attorney’s fees the amount should be reduced since the fees are not reasonable.
Attorney Hours
x Hourly Rate Subtotal
Tami Kay Lee 35 x 240 $ 8,400.00
Ian R. Feldman
5 x 240 $ 1,200.00
Additional anticipated fees include 10 hours to review opposing papers, prepare a reply, and argue the Motion.
Costs
Gibbs Law initial appearance fees: $ 435.00
Menzies initial appearance fees: $
435.00
Gibbs’ Motion fees $ 90.00
Total Fees and Costs Incurred to Date: $10,560.00
The Court finds the hours billed in relation to this Motion to be excessive given the lack of complexity of the case and credits 20 hours, totaling $4,800, plus $960.00 for the fee appearance. In total, the Court grants Defendants $5,760.00 in attorney’s fees.
Conclusion
defendants’ Special Motion to Strike Plaintiff’s Complaint as an unlawful Strategic Lawsuit Against Public Participation (“SLAPP”) is GRANTED.
The
Court also awards Defendants $5,760.00 in attorney’s fees and
costs pursuant to Code of Civil Procedure §425.16(c).
Moving party to give notice.