California SLAPP Law

I of course take great joy in extricating my client from a lawsuit with an anti-SLAPP motion. The client was stressed over being sued, facing over a year of litigatio, and the possibility of having to pay a judgment. Then I swoop in and in relatively short order and with relatively modest fees, make all the problems go away. I even get their attorney fees paid by the Plaintiff.

But I also feel a little pain for the plaintiffs, especially when they are representing themselves. If an attorney files a SLAPP on behalf of their client, then shame on the attorney. They should know better. But what does Joe Citizen know about anti-SLAPP law? He feels he was done wrong, sues for redress, and ends up unwittingly filing a SLAPP.

The most fertile ground for these self-inflicted wounds are lawsuits for Malicious Prosecution. Bill sues Joe for something, and Joe ends up paying a lot of money to an attorney to fight the lawsuit. But ultimately Joe wins, so he sues Bill for Malicious Prosecution in order to get back his attorney fees. A perfectly legitimate goal. If he hits a home run, he might even get punitive damages. That’ll teach Bill.

But what Joe does not know is that EVERY action for Malicious Prosecution satisfies the first prong of the anti-SLAPP analysis. The anti-SLAPP statute, Code of Civil Procedure 425.16, subpart (e), protects:

(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.

Joe is suing Bill because Bill sued Joe. He is suing for a written statement (the complaint) made in a judicial proceeding. His Malicious Prosecution action therefore automatically satisfies the first prong of the anti-SLAPP analysis, namely, that it falls under the anti-SLAPP statute.

But we still have the second prong. Even though the first prong is satisfied, Joe can defeat the anti-SLAPP motion if he can present sufficient evidence to show that his Malicious Prosecution action can succeed.

The elements of Malicious Prosecution.

To make that showing, Joe must list all the elements of a Malicious Prosecution claim and show proof as to each element. So let’s begin with those.

Three elements must be pleaded and proved to establish the tort of malicious prosecution:

(1) A lawsuit was commenced by or at the direction of the defendant which was pursued to a legal termination in … plaintiff’s favor;

(2) the prior lawsuit was brought without probable cause; and

(3) the prior lawsuit was initiated with malice.

First, take note of number 1 – A lawsuit was commenced by or at the direction of the defendant which was pursued to a legal termination in … plaintiff’s favor. This element is why I have to explain to so many clients why they can’t file a cross-complaint for Malicious Prosecution against a plaintiff who has filed a frivolous complaint. You can’t sue for Malicious Prosecution until AFTER you have won the action, so it can’t be pursued in the SAME action. This element is also why I have on multiple occasions brought successful anti-SLAPP motions against cross-complaints containing a Malicious Prosecution claim.

And note also the “legal termination” language.

If Bill just got tired of the litigation costs and dismissed the complaint against Joe, that is not a determination on the merits, and hence would not support a Malicious Prosecution action.

On the other hand, if a Joe had filed a dispositive motion such as a motion for summary judgment, and THEN Joe decided to dismiss, that CAN be a basis for a Malicious Prosecution action. In that case, the reasoning goes, Joe did prevail on the merits because Bill read the motion and saw that he was going to lose, and that’s why he dismissed.

So those are some points that can trip up Malicious Prosecution plaintiffs, but the next two elements are the ones that most often get plaintiffs into trouble. It is not enough that the Plaintiff won the underlying action. He must also show that the underlying complaint was initiated WITHOUT PROBABLE CAUSE and WITH MALICE.

I’ll use two recent cases of mine to illustrate how tough it can be to meet those elements.

The Case of the Missing Wife.

In the first case, husband comes home from work after a hard day at the quarry to find his wife and children gone. The wife left a note, “I’ve taken the children on a vacation,” with no destination provided. That’s highly out of character, and the husband would certainly liked to have been included in a family vacation, but he expects his wife will call to explain.

But she doesn’t. A day goes by, two days go by, and husband finally calls the police on the non-emergency line to see if he should be doing something.

Wife had not answered any of the husband’s phone calls but when the police came up in her caller ID, she finally answered. She said she was leaving her husband, and was taking the children to be with her parents in Oklahoma for two weeks while she figures things out.

But then two weeks come and go, so husband goes to family court to seek custody. The judge orders the wife to return the children to California.

She doesn’t obey the order, so eventually she is arrested in Oklahoma and returned to California, and released on bail. The District Attorney decides to charge her with interference with child custody. You see, a parent has the absolute right to custody of her children, but so does the other parent. You can’t just unilaterally decide to deprive the other parent of their equal custody right.

As far as what she was charged with, it should have been a slam dunk, but for whatever reason the jury decided in her favor. I guess they just decided that it wasn’t that big of a deal that the father was kept from his children for over a month while the wife figured things out, even if she did defy the court’s order.

So having defeated the criminal charges, the wife turns around and sues the husband for Malicious Prosecution, claiming that she had prevailed in court (which she absolutely had), and that the charges were without probable cause because husband knew where the children were, even though she lied about how long they would be gone. She wants to be reimbursed for all of her attorney fees spent fighting the legal action and money for emotional distress.

The husband brilliantly retained me to fight the Malicious Prosecution claim. I of course responded with an anti-SLAPP motion. As stated above, EVERY Malicious Prosecution action automatically satisfies the first prong of the anti-SLAPP analysis. The plaintiff is suing because the (now) defendant sued. In fact, such claims logically should be entirely barred by Civil Code 47 under the absolute litigation privilege, except that the courts have carved out this exception.

The courts decided that there has to be some recourse when someone brings an action with malice and without probable cause, so the only two claims that are permitted are Malicious Prosecution and Abuse of Process, although a viable Abuse of Process claim is rarer than a unicorn. So really, a claim for Malicious Prosecution is the only claim that has a chance.

In my anti-SLAPP motion, I spent almost no time arguing the first prong of the anti-SLAPP analysis, because case law is so clear on that point. But Plaintiff, who originally represented herself, failed to see that reality, and tried to argue this was not a matter of public interest, but that is a nonsensical argument. If you go back above and read subparts (e)(1) and (2), you’ll see that there is no requirement that the litigation involved a matter of public interest.

In defense of the wife, the wording of the statute is confusing in that regard, and early court opinions did in fact conclude that in all cases a matter of public interest is required, but the California Supreme Court has since ruled otherwise.

But was the complaint initiated without probable cause?

So that takes us to the second prong. Can the wife produce sufficient evidence to prove that husband initiated a criminal investigation without probable cause?

In that regard, she had two nearly impossible hurdles.

In a typical Malicious Prosecution case – at least from the ones I have handled – it is a plaintiff in a CIVIL action who decides to sue the defendant. So all of the blame falls on the civil Plaintiff for that decision.

But when you call the police, who makes the decision to file charges? It’s the police, not the victim. And one very important fact in that regard (did you notice it?) is that husband called the non-emergency line. He wasn’t calling to report a crime, he was calling to report a concern. He wanted to know what he should do. He never once asked for his wife to be arrested. The District Attorney only decided to charge a crime when the wife failed to comply with the court order.

It is true that if someone reports a crime without any reason to believe a crime has been committed, that can be the basis for a Malicious Prosecution action. But a citizen is not required to know what constitutes a crime. All that is necessary is that the reporting party THINKS there is something inappropriate going on. The husband was being kept from his children, and thought, correctly, that there must be something that could be done.

So the wife failed at the very first element. She could not show that my client had initiated any complaint against her. It was the DA who had made that decision.

The Advice of Counsel Defense.

The same is true in the civil context. Let’s say you are rear ended and hire a personal injury attorney to sue for your injuries. The attorney tells you to sue for negligence and intentional infliction of emotional distress (“IIED”).

The negligence claim is entirely appropriate, but there is no basis for a claim for intentional infliction of emotional distress. It was negligence, not an intentional tort.

Under this scenario, even if you prevail on the claim for negligence, the defendant could sue you for the failed claim for IIED. A Malicious Prosecution action does not have to be an all-or-nothing action. Each claim is a possible basis.

But if you acted on the advice of your counsel, that absolves you from any liability for the IIED claim, and it all falls instead on the attorney. This is called the ADVICE of COUNSEL defense.

The only limitation is that you must have at all times been truthful with your attorney. If you told the attorney that after the accident the defendant would drive by your house and should taunts about the pain you were in, and THAT is why the attorney thought IIED was a valid claim, then that’s on you if that never happened.

So back to the wife, she also could not overcome the advice of counsel defense. In the criminal context, it is the DA who decides what charges to bring. The DA represents the government, not the victim. Even if the victim tells the DA they don’t want to prosecute, the DA is free to file charges. So the DA’s decision to charge the wife amounts to advice of counsel, and shields the husband who called the police from liability.

The Whistleblower.

The next example also involved the Advice of Counsel defense, although that was not how it was ultimately decided.

My future client had complained about an unsafe condition at her job, and was thereafter fired. She sued for wrongful termination. Originally she had named only the company as a defendant, but she later hired a new attorney, and that attorney told her she should also name the supervisor who had fired her. We’ll call him Mean Boss.

The case went to trial, and although three jurors agreed that she had been wrongfully terminated, in civil court only nine need to agree, so she lost the case.

The company didn’t sue for malicious prosecution, but Mean Boss did. But before he sued, he sent the former employee a demand letter, seeking reimbursement of the $150,000 he had spent defending himself.

I was initially retained just to respond to the letter, because the client was savvy enough to recognize that the threatened Malicious Prosecution action was likely a SLAPP. He thought perhaps if I explained to opposing counsel why the action they were threatening was a SLAPP, it might prevent the action from ever being filed.

Typically when I review a complaint and see that it is a SLAPP, I don’t advise the plaintiff of that fact. I don’t want to give them the opportunity to quickly amend the complaint and possibly avoid the anti-SLAPP motion. But here I was specifically retained to warn them off, so that is what I did. I wrote to opposing counsel and explained why his complaint would fail to my withering anti-SLAPP motion if he dared to file it.

But I guess my saber-rattling wasn’t up to snuff that day, or he thought he knew better than me, so he went ahead and filed for both Malicious Prosecution and Abuse of Process. As I explained above, a valid Abuse of Process claim is next to impossible to state, so right out of the gate I knew I had an almost guaranteed 50% victory, even if I lost on the Malicious Prosecution claim.

I ended up with half a dozen arguments in favor of granting the anti-SLAPP motion, but the two strongest were Advice of Counsel and established probable cause.

As to Advice of Counsel, Mean Boss had only been added because my client’s attorney had told her to do so. I supported the motion with a declaration from the client and her attorney attesting to this fact. How could Mean Boss prove that had not occurred?

But there was an added twist.

Prior to commencement of the wrongful termination trial, the defendants were so confident they could prove that she had not been fired as a result of her complaints about workplace safety, that they brought a motion for summary judgment. That motion was denied.

And what does it mean when a motion for summary judgment is denied? It means that the judge has considered all the evidence from both sides, and has determined that the case cannot be decided as a matter of law.

And what does it mean when a case cannot be decided as a matter of law? It means that the court concluded that the plaintiff has established that there is probable cause to proceed.

This is referred to as the Interim Adverse Judgment Rule.

The denial of the summary judgment motion established probable cause, and thereby automatically defeated any subsequent case for Malicious Prosecution. Now, the summary judgment motion must involve the same issues for the Adverse Judgment Rule to apply. For example, if the motion had been based on an argument that the Plaintiff missed the statute of limitations, and that was denied, that would not establish any probable cause on whether the Plaintiff had been fired because of her report of safety violations.

But here the issues were identical. Defendants had argued in the underlying case that she had been fired for reasons other than the report of unsafe conditions, and they were using those same arguments as proof that she knew her claims were without merit in support of the Malicious Prosecution action.

This had been my primary argument to opposing counsel in response to his demand letter. It’s not like I hid the ball.

Based on his subsequent opposition to my anti-SLAPP motion, I now know the flaw in his logic. He thought he could use the evidence elicited at the trial to go back and refute the judge’s ruling on the motion for summary judgment. He argued, “Well the judge was told this by plaintiff in opposition to the motion for summary judgment, but the trial later revealed she was lying.” But the fact that the jury does not agree with the Plaintiff’s testimony does not mean she is lying. Opposing counsel could not identify any alleged lies.

The judge went with the easiest argument, and ignored all my others. He found that the Interim Adverse Judgment Rule established probable cause, and GRANTED my anti-SLAPP motion as to both causes of action.

As these cases illustrate, an action for Malicious Prosecution can be fraught with peril. They can be won under the right circumstances, but there are high hurdles to overcome. In the second case, Mean Boss might have been better served suing the attorneys since that would have eliminated the Advice of Counsel defense as to them, but he still would have been tripped up by the Adverse Interim Judgment rule.

So why are Abuse of Process claims so hard to win?

Abuse of Process claims are protected by the Litigation Privilege afforded by Civil Code § 47. So long as the “process” was used for its intended purpose, it’s not an abuse.

For example, in one reported case, the defendant was sued for money due on a contract. But it was alleged that the process server lied about ever serving the complaint on the defendant. Plaintiff was then able to obtain a default judgment against the defendant, and then obtained a Writ of Execution and seized some of defendant’s property.

Defendant successfully quashed the summons, and then sued for Abuse of Process. It certainly sounds like abuse of process, doesn’t it? If the allegations were true, plaintiff had lied his way through the process to obtain an advantage, and seized the property knowing that he had no right to do so.

But the court concluded that the litigation privilege under Civil Code § 47 is absolute, and so long as the processes were being used for their intended purposes, even if perjury were involved, they were not actionable.

The circumstances are rare where the process used is not the proper process for that purpose.