Pendley vs. Jamboree Housing Corporation

Step One – Protected Activity

The defendant bears the initial burden to establish that the challenged claims arise from activity protected by Code of Civil Procedure section 425.16. (Baral, supra, 1 Cal.5th at p. 384.)

To meet this burden, the defendant must “identify what acts each challenged claim rests on and ... show how those acts are protected under a statutorily defined category of protected activity.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.) “A ‘claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leaning to some different act for which liability is asserted.’ [Citation.] To determine whether a claim arises from protected activity, courts must ‘consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis of liability.’ [Citation.]” (Wilson, supra, 7 Cal.5th at p. 884; Bonni, supra, 11 Cal.5th at p. 1009.)

The anti-SLAPP statute identifies four categories of protected activity. (See Code Civ. Proc., § 425.16, subd. (e)(1)-(4).) Here, Moving Party relies upon subds. (e)(1) and (2) which bring the following conduct within the scope of Section 425.16:

“(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law...”

Here, the challenged cause of action is Malicious Prosecution. It is well established that a claim for malicious prosecution implicates Section 425.16. Initiation and maintenance of a lawsuit is activity that is covered by Code Civ. Proc. §425.16. (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735 [“it is settled that a claim for malicious prosecution is subject to a special motion to strike under Cal. Civ. Proc. Code §425.16”].)

Accordingly, Moving Party has satisfied his burden to show that the challenged causes of action arise from activity protected by the anti-SLAPP statute. Therefore, the analysis should proceed to the second prong.

Step Two – Probability of Prevailing

If the movant satisfies the first prong, the burden shifts to the responding party to establish a probability of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) Although the moving party has the burden on Prong 1, the opposing plaintiff has the burden on Prong 2. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; C.C.P. § 425.16(b)(1) [a COA “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.”].)

To establish a probability of prevailing under Code Civ. Proc. § 425.16, subd. (b)(1), the responding party must demonstrate that the challenged causes of action/pleading are both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by plaintiff is credited. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) The court considers the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (Equilon, supra., 29 Cal.4th at 67; C.C.P. § 425.16(b)(2).)

Plaintiff must show there is admissible evidence which, if credited, would be sufficient to sustain a favorable judgment. (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497-98.) That is met if it is reasonably possible the evidence in supporting affidavits, declarations or their equivalent will be admissible at trial. (Rutter CPBT §7:1020; Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 C5th 931, 947.)

Only a claim that satisfies both prongs of the statute - i.e., that arises from protected speech or petitioning and lacks even minimal merit - can be stricken under the SLAPP statute. (Navellier, supra., 29 Cal.4th at 88- 89; Jarrow Formulas, Inc., supra.,31 Cal.4th at 733.)

Malicious prosecution is the initiation and maintenance of legal proceedings against a third person with malice and without probable cause. (Brennan v. Tremco Inc. (2001) 25 Cal.4th 310, 320.) he elements of a claim for malicious prosecution include (1) a prior action commenced by or at direction of defendant, (2) that lacked probable cause, (3) was initiated with malice, and (4) resulted in a termination of the action in plaintiff’s favor. (Gruber v. Gruber (2020) 48 Cal.App.5th 529, 537.)

Plaintiff has failed to meet his burden to establish that it has made a legally sufficient claim for malicious prosecution – he has failed to file a timely opposition altogether. Regardless, there is no probability of prevailing here, as there is no possibility Plaintiff could demonstrate that the prior unlawful detainer ended in a favorable termination. The case settled pursuant to a stipulation made on the record. A negotiated settlement cannot qualify as a favorable termination.(Ferreira v. Gray, Cary, Ware & Freidenrich (2001) 87 Cal.App.4th 409, 413 [“In order to maintain an action for malicious prosecution, the plaintiff must first demonstrate that there was a favorable termination of the underlying litigation. [citation] This requirement is an essential element of the tort of malicious prosecution, and it is strictly enforced. [citation] Where the underlying litigation ends by way of a negotiated settlement, there is no favorable termination for the purposes of pursuing a malicious prosecution action.”].)

Plaintiff surrendered possession of the premises in exchange for a promise that his adversaries would forego collection of costs it would have been entitled to had the matter proceeded to trial. There is no reasonable possibility this set of facts could support a cause of action for malicious prosecution.