Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG 06-265 761
STEIN, Acting P. J.
Brian Carter appeals from an order granting a special motion to strike his complaint for malicious prosecution. We affirm.
Background
It seems that in April 2002, Carter contracted with Monopoly Game, LLC, and its manager, Sidney Gladney, to act on Monopoly Game’s behalf in connection with a business venture, the nature of which is not clear from the appellate record. Gladney and Monopoly Game borrowed money from Michael Thaler and California Trust Deeds (defendants), presumably in order to finance this venture. Carter later had a falling out with Gladney and Monopoly Game, leading him to file a complaint against those entities, seeking damages on a number of theories, including wrongful termination, breach of contract, infliction of emotional distress and fraud. Although defendants had no direct relationship with Carter, Carter named them as defendants in that case. Defendants successfully demurred to all Carter’s claims against them, except for the fraud cause of action.
The demurrers were sustained without leave to amend as to the breach of contract and wrongful termination causes of action. The demurrer to the infliction of emotional distress cause of action was sustained with leave to amend, but Carter did not seek to amend his complaint to include facts from which it might be determined defendants were liable on such a theory.
Defendants subsequently brought suit against Carter for malicious prosecution. The superior court dismissed that suit, finding it to be premature because the fraud claim was still pending in the underlying action.
Carter then filed this case for malicious prosecution against defendants, based on their suit against him. Defendants answered, and also filed a special motion to strike under Code of Civil Procedure section 425.16. On July 7, 2006, the superior court granted defendants’ motion, finding defendants’ suit had been an act in furtherance of a person’s right of petition or free speech (§ 425.16, subd. (e)(2)) and Carter had not demonstrated he was likely to prevail on his claim against them.
All statutory references are to the Code of Civil Procedure.
This appeal followed.
Discussion
Section 425.16 provides, inter alia, that “[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 or 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.” (§ 425.16, subd. (b)(1).)
“Resolution of an anti-SLAPP motion ‘requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,” as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.’ [Citation.]” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733 (Jarrow).)
An action for malicious prosecution arises from an underlying lawsuit or petition to the judicial branch and therefore arises from protected activity (see Jarrow, supra, 31 Cal.4th at pp. 734-735; and see also Contemporary Services Corp. v. Staff Pro, Inc. (2007) 152 Cal.App.4th 1043, 1055), and Carter makes no argument his malicious prosecution action is anything other than an act or acts taken in furtherance of defendants’ right of petition under section 425.16. His arguments instead are directed to the second step of the two-step process, referring to the superior court’s finding he failed to demonstrate a probability of prevailing on his claim. As to that step, the court found plaintiff would not prevail because (1) defendants’ malicious prosecution action against him had not terminated in his favor on the merits, and (2) plaintiff had not presented sufficient evidence to negate defendants’ claim they had filed their action based on the good faith advice of their attorney.
Favorable Determination on the Merits
A plaintiff in a malicious prosecution action must plead and prove the prior judicial proceeding of which he complains terminated in his favor. (Lackner v. LaCroix (1979) 25 Cal.3d 747, 749.) The theory underlying the requirement of favorable termination is that it tends to indicate the innocence of the accused. (Id. at p. 750.) Accordingly, “[i]t is apparent ‘favorable’ termination does not occur merely because a party complained against has prevailed in an underlying action. While the fact he has prevailed is an ingredient of a favorable termination, such termination must further reflect on his innocence of the alleged wrongful conduct. If the termination does not relate to the merits—reflecting on neither innocence of nor responsibility for the alleged misconduct—the termination is not favorable in the sense it would support a subsequent action for malicious prosecution.” (Id. at p. 751.) By way of example, a dismissal for lack of jurisdiction is not a “favorable” termination for purposes of a subsequent action for malicious prosecution because it is not on the merits, and does not reflect the merits. (Id. at p. 750.) For the same reason dismissal for the failure to file within the applicable limitations period does not demonstrate a lack of cause for pursuing a claim, and is not a termination on the merits. (Id. at p. 752.) A dismissal for lack of standing does not in any way indicate innocence of alleged misconduct. (Hudis v. Crawford (2005) 125 Cal.App.4th 1586, 1592.)
The same reasoning applies here. Defendants’ suit was not dismissed for some failure to establish probable cause for prosecuting their claim, and the dismissal did not in any way establish Carter’s innocence. The suit was dismissed simply because it was premature; whether Carter might have been “innocent” of wrongdoing in suing defendants could not be determined until Carter’s fraud claim was resolved. There was and is no probability Carter might obtain a favorable conclusion to his claim for malicious prosecution.
Indeed, that Carter was not “innocent” was strongly suggested by the sustaining of demurrers against all his claims except for the fraud claim. We note, further, that as defendants point out, the trial court presiding over Carter’s suit against defendants told Carter’s attorney, Stanley Hilton, the emotional distress claim, at least, “stinks as to [defendants],” warning him that by pursuing it he was “opening himself up to some future recourse.”
We need not, and do not, address the question of whether the defense of advice of counsel provided an alternative basis for the court’s ruling.
Disposition
The order granting the special motion to strike is affirmed. Defendants are awarded their costs on appeal.
We concur: SWAGER, J., MARGULIES, J.