Futorian v. Waldman CA1/5

Filed 11/26/13 Futorian v. Waldman CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

DEBRA FUTORIAN, Plaintiff and Appellant, A138226 v. DAN WALDMAN et al., (San Francisco City and County Super. Ct. No. CGC-12-524288) Defendants and Respondents.

Plaintiff Debra Futorian (appellant) appeals from an order granting a special motion to strike pursuant to the anti-SLAPP1 statute (Code Civ. Proc., § 425.16)2 filed by defendants Dan Waldman et al. (respondents).3 Appellant contends the trial court erred in concluding that her cause of action for malicious prosecution arises from protected activity and that she failed to show a probability of prevailing on the claim. We affirm. BACKGROUND In September 2012, appellant filed a complaint against respondents alleging a single cause of action for malicious prosecution. The complaint alleges: “On 24 April

1 SLAPP is an acronym for “strategic lawsuit against public participation.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1.) 2 All undesignated section references are to the Code of Civil Procedure. 3 Respondents are Dan Waldman, Regina Waldman, Serge Berguig, Maud Berguig, and Powell Street Investors. 1

2012, defendants herein instituted or caused POWELL STREET INVESTORS to initiate a civil action against plaintiff in the Superior Court of California, County of San Francisco. The complaint for unlawful detainer was based upon a three-day notice to quit that was alleged to have been served on plaintiff by defendant POWELL STREET INVESTORS that demanded that plaintiff surrender possession of the premises to defendants within three days due to alleged just cause that plaintiff was committing or permitting the existence of a nuisance on the premises, to wit, that she was causing destruction to the premises.” In October 2012, respondents moved to strike the action pursuant to section 425.16. In January 2013, the trial court granted the motion.4 This appeal followed. DISCUSSION I. Summary of Section 425.16 “In 1992, the Legislature enacted section 425.16 in an effort to curtail lawsuits brought primarily ‘to chill the valid exercise of . . . freedom of speech and petition for redress of grievances’ and ‘to encourage continued participation in matters of public significance.’ (§ 425.16, subd. (a).) The section authorizes a special motion to strike ‘[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 . . . .’ (§ 425.16, subd. (b)(1).) The goal is to eliminate meritless or retaliatory litigation at an early stage of the proceedings. [Citations.] The statute directs the trial court to grant the 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.’ (§ 425.16, subd. (b)(1).) “The statutory language establishes a two-part test. First, it must be determined whether the plaintiff’s cause of action arose from acts by the defendant in furtherance of