Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CV059250
Premo, J.
Plaintiff, attorney Gail Harper, sued defendants, attorneys Jamie Harmon and Meredith Fahn, for malicious prosecution. In the underlying action, defendants had successfully petitioned for a writ of habeas corpus on behalf of Vu Dai Nguyen by arguing that plaintiff had ineffectively represented Nguyen on appeal from a criminal conviction. In this action, defendants filed special motions to strike under Code of Civil Procedure section 425.16, commonly known as the anti-SLAPP statute. The trial court granted the motions and dismissed the action. Plaintiff appeals. We affirm the judgment.
We reversed the order granting the petition.
Further unspecified statutory references are to the Code of Civil Procedure.
Legal Background
Section 425.16, subdivision (b)(1), 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 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.”
“The purpose of the statute is to encourage participation in matters of public significance by allowing a court to promptly dismiss unmeritorious actions or claims that are brought to chill another’s valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. [Citation.] In furtherance of this purpose, the anti-SLAPP statute is to be construed broadly.” (Padres L.P. v. Henderson (2003) 114 Cal.App.4th 495, 508.)
“On a special motion to strike under the anti-SLAPP statute, ‘[t]he moving party bears the initial burden of establishing a prima facie showing the plaintiff’s cause of action arises from the defendant’s free speech or petition activity.’ [Citations.] The moving SLAPP defendant may meet this burden by showing the act which forms the basis for the plaintiff’s cause of action was an act that falls within one of the four categories of conduct described in subdivision (e) of section 425.16 . . . . [¶] [(3)] ‘If the defendant establishes a prima facie case, then the burden shifts to the plaintiff to establish “ ‘a probability that the plaintiff will prevail on the claim,’ ” i.e., “make a prima facie showing of facts which would, if proved at trial, support a judgment in plaintiff’s favor.” ’ ” (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1417.)
“In reviewing an anti-SLAPP motion, a court must consider the pleadings and the evidence submitted by the parties (§ 425.16, subd. (b)(2)); however, it cannot weigh the evidence, but instead must simply determine whether the respective party’s evidence is sufficient to meet its burden of proof. [Citation.] On appeal, we independently review the trial court’s ruling on the motion to strike.” (Padres L.P. v. Henderson, supra, 114 Cal.App.4th at p. 509.)
It can no longer be disputed whether a malicious prosecution lawsuit falls within the scope of the anti-SLAPP statutory framework. The Supreme Court held in Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735, that because a lawsuit is a “petition to the judicial branch” and by definition, “a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit,” malicious prosecution actions fall within the purview of the anti-SLAPP statute.
Therefore the issues on this appeal arise from the second prong of the statute, dealing with whether the plaintiff has “demonstrated a probability of prevailing on the claim.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)
Plaintiff disagrees that only the second prong is at issue. She argues that defendants’ activity in filing Nguyen’s petition is not protected by section 425.16 because the activity was illegal. According to plaintiff, defendants knew from the outset that Nguyen’s habeas-corpus claim was unmeritorious and used her as “the patsy for [their] scheme to trump up a Sixth Amendment claim against her for profit.” Plaintiff relies on Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley). This reliance is erroneous.
Background
A jury found Nguyen guilty of being a felon in possession of a firearm after Nguyen had unsuccessfully moved to suppress evidence. Plaintiff represented Nguyen on appeal. She advanced several arguments on his behalf but did not challenge the order denying the motion to suppress. We affirmed the judgment. (People v. Nguyen (Mar. 9, 2001) H019843 [nonpub. opn.].) Thereafter, Nguyen hired defendants to collaterally challenge the judgment. Defendants filed a petition for a writ of habeas corpus asserting ineffective assistance of appellate counsel grounded upon plaintiff’s failure to challenge the order denying the motion to suppress. The trial court granted the petition, but we reversed the order. (In re Nguyen (Mar. 9, 2005) H027427 [nonpub. opn.].) Plaintiff then filed this action alleging that “The defendants in raising the fraudulent claim of ineffective assistance of counsel against Plaintiff acted with a willful and conscious disregard of Plaintiff’s rights, and with knowledge that Plaintiff’s reputation as an attorney would be damaged by the false claim and that Plaintiff would suffer damage as a result of their actions.” The trial court granted defendants’ motions on the basis that plaintiff had no standing to sue for malicious prosecution given that she was not a party to the underlying proceeding.
The gist of the cause of action sounds as if plaintiff means to sue defendants for defamation. But plaintiff insists that she is suing defendants for malicious prosecution. She likely takes this position because filing a defamatory court document is protected by the absolute litigation privilege codified in Civil Code section 47, subdivision (b), which “bars all tort causes of action, except for a claim of malicious prosecution.” (Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1514.) In any event, the trial court accepted plaintiff’s characterization of her cause of action for purposes of analysis and so do we.
Discussion
“To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the underlying action was (1) commenced by or at the direction of the defendant and pursued to a legal termination in the plaintiff’s favor; (2) brought without probable cause; and (3) initiated with malice.” (Padres L.P. v. Henderson, supra, 114 Cal.App.4th at p. 513.) Stated another way, to advance a malicious prosecution claim, the plaintiff must demonstrate “(1) the institution of a civil action by the malicious-prosecution defendant and (2) the action’s favorable termination for the malicious-prosecution plaintiff.” (Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1429.) In short, such a claim may only be brought by the prevailing party in the underlying action. (Coverstone v. Davies (1952) 38 Cal.2d 315, 324 [“actions for false arrest and malicious prosecution are personal actions which do not give rise to a cause of action in anyone other than the person directly aggrieved”].)
Plaintiff cannot prevail on her malicious prosecution claim as a matter of law because defendants did not institute a civil action against her that was terminated in her favor. At best, plaintiff was a witness in a third party’s habeas corpus proceeding. She cites no authority for her implicit proposition that she is directly aggrieved by a third party’s successful habeas corpus petition. She merely “submits that, in some cases, it is not required that the plaintiff in a malicious prosecution case have been a named party in the underlying case.” But she cites no authority for this sweeping generality. Her arguments that she was a “target” of the habeas corpus proceeding, had a “personal interest” in the outcome of the proceeding, and suffered injuries from the proceeding are patently insufficient to show that the missing elements of a malicious prosecution claim exist. Her argument that it offends public policy to deny her a remedy is disingenuous. “[T]he public policy of this state is not served by permitting attorneys to sue one another for omissions or representations made as officers of the court during the course of litigation. [¶] . . . . [¶] [Plaintiff’s] complaint represents an intolerable attempt to end-run and abuse the judicial system and could lead to a geometric proliferation of litigation, if such actions were allowed to proceed. There is no support in law or logic to condone the initiation of such viruses into the legal system.” (Pollock v. Superior Court (1991) 229 Cal.App.3d 26, 29-30.)
Plaintiff cites two out-of-state cases of which neither is a malicious prosecution case. (Hart v. O’Malley (Pa. 1996) 676 A.2d 222 [wrongful use of civil proceeding]; Rushing v. Bosse (Fla.App. 4 Dist. 1995) 652 So.2d 869 [wrongful institution of adoption proceeding].)
Disposition
The judgment of dismissal is affirmed. Respondent Fahn’s objection to appellant’s errata to opening brief is overruled.
WE CONCUR: Rushing, P.J., Elia, J.
In Flatley, the court found that the defendant could not use the anti-SLAPP statute to strike the plaintiff’s action that arose from the defendant’s claimed exercise of protected speech or petition rights via prelitigation demand letters and phone calls that, as a matter of law, constituted criminal extortion. The defendant in Flatley was an attorney who had sent Flatley a demand letter threatening to publicly accuse him, a known entertainer, of rape and other unspecified criminal violations involving the Social Security Act and immigration and tax laws unless he immediately paid the defendant and his client $1 million. The defendant reiterated the threats in telephone calls to Flatley’s attorneys. The court stressed that its ruling was limited to the extreme facts of the case: “We emphasize that our conclusion that [defendant’s] communications constituted criminal extortion as a matter of law are based on the specific and extreme circumstances of this case. Extortion is the threat to accuse the victim of a crime or ‘expose, or impute to him [or her] . . . any deformity, disgrace or crime’ (Pen. Code, § 519) accompanied by a demand for payment to prevent the accusation, exposure, or imputation from being made. Thus, our opinion should not be read to imply that rude, aggressive, or even belligerent prelitigation negotiations, whether verbal or written, that may include threats to file a lawsuit, report criminal behavior to authorities or publicize allegations of wrongdoing, necessarily constitute extortion. [Citation.] . . . In short, our discussion of what [is] extortion as a matter of law is limited to the specific facts of this case.” (Flatley, supra, at 39 Cal.4th at p. 332, fn. 16.)
Whether defendants knowingly prosecuted an unmeritorious habeas corpus petition is a far cry from criminal extortion. Flatley is therefore inapposite. In any event, we observe that Flatley is of no practical value to plaintiff. If we reversed on the ground that defendants failed to to show that plaintiff’s cause of action arose from defendants’ free speech or petition activity (due to defendants’ illegal motive), defendants would need only to demur to the complaint so as to obtain another judgment of dismissal because, as we explain, plaintiff simply cannot state a cause of action for malicious prosecution. It is true that a reversal would negate the trial court’s section 425.16 award of attorney fees to defendants, but defendants inform us that plaintiff has already negated the award by discharging the debts in bankruptcy.