Opinion
NOT TO BE PUBLISHED
Appeal from a judgment and orders of the Superior Court of Orange County, No. 30-2009-00123178 Josephine Staton Tucker, Judge.
Matt Hoover, in pro. per.; Knickerbocker Law Corporation and Richard L. Knickerbocker for Plaintiff and Appellant.
Sedgwick, Detert, Moran & Arnold, Gregory H. Halliday and Charles N. Hargraves for Defendants and Respondents Thomas E. Walley and Good, Wildman, Hegness & Walley.
Hinshaw & Culbertson, John W. Sheller, Wendy Wen Yun Chang and Filomena E. Meyer for Defendants and Respondents Berger Kahn and Steven H. Gentry.
Law Office of Patty Thammalaiviroj and Patty Thammalaiviroj for Defendants and Respondents Sarah Martin and Footprints ‘N More, Inc.
OPINION
ARONSON, J.
Plaintiff Matt Hoover appeals from orders granting the defendants’ special motions to strike his malicious prosecution action as a strategic lawsuit against public participation (SLAPP) under Code of Civil Procedure section 425.16, and from the ensuing judgment of dismissal. We find no error and affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
I
Background Facts and Procedure
Hoover filed a malicious prosecution action against his former girlfriend, Sarah Martin, her business, Footprints ‘N More, Inc., (Footprints) and two lawyers and law firms with whom Hoover had tangled previously. Hoover’s complaint traces the alleged ill will among the parties back through several layers of litigation, beginning with a landlord-tenant dispute between Martin and her commercial landlord (the landlord-tenant dispute).
Attorney Thomas E. Walley, of Good, Wildman, Hegness & Walley (the Walley firm) represented Martin in this early dispute, and Martin’s then-boyfriend Hoover became a co-client of the firm, agreeing to shoulder some of the litigation costs. At some point, the romance between Hoover and Martin disintegrated into hostility. The Walley firm, apparently oblivious to any conflict of interest, sided with Martin, kept her as a client, but “fired” Hoover. Hoover responded by suing both Martin and Walley in two new and separate legal actions.
First, Hoover filed an arbitration claim against Walley and the Walley firm for breach of fiduciary duty, malpractice, and other claims arising from their attorney-client relationship in the landlord-tenant dispute (the Walley arbitration). The Walley arbitration ended badly for Walley. The arbitrator found Walley and his firm ignored obvious conflicts of interest, thereby violating their ethical duties to Hoover and committing malpractice. The arbitrator awarded Hoover more than $200,000 against Walley and the Walley firm.
Next, Hoover sued Martin for breach of contract and various common counts based on money she allegedly owed him in connection with the landlord-tenant dispute and their related business dealings (the Hoover-Martin dispute). Martin responded with a cross-complaint against Hoover for breach of oral contract related to their joint purchase of a boat, breach of written contract related to their agreement to share legal fees in the landlord-tenant dispute, fraud related to that same agreement, various common counts, and an “intentional tort” comprised of allegations that Hoover threatened to physically harm Martin and her young child, interfered with her attorney-client relationship with Walley, and engaged in conduct that undermined her legal position in the landlord-tenant dispute. Martin’s cross-complaint is the underlying action upon which Hoover bases his malicious prosecution case.
Attorney Steven Gentry of the law firm Berger Kahn represented Walley in the Walley arbitration, and also represented Martin in the Hoover-Martin dispute and on Martin’s cross-complaint (the underlying action).
The Hoover-Martin dispute, and the underlying action, proceeded to a bench trial before Judge Derek W. Hunt. Judge Hunt entered judgment in favor of defendant Martin in the Hoover-Martin dispute, and in favor of cross-defendant Hoover in the underlying action. On the face of the judgment, which Hoover’s counsel prepared, the trial court crossed out a provision identifying Hoover as “the prevailing party” and awarding him costs of suit under section 1032. In its stead, the trial court added the following handwritten sentence: “Neither plaintiff, defendant, cross-complainant, nor cross-defendant having obtained relief, each side to bear its own costs.”
In the wake of that judgment, Hoover filed the instant action in propia persona, seeking damages against all his nemeses from the preceding cases. In the complaint, filed May 15, 2009, Hoover sued Martin, Footprints, Gentry, Berger Kahn, Walley and the Walley firm, for malicious prosecution and related counts of aiding and abetting and conspiracy to commit malicious prosecution.
The complaint identifies the causes of action as “wrongful use of civil proceedings” and related counts for aiding and abetting and conspiracy. The allegations set forth in the pleading, however, amount to malicious prosecution claims rather than abuse of process claims. (See 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 470, p. 697 [distinguishing the two torts].)
The Gentry anti-SLAPP motion
On July 8, 2009, defendants Gentry and Berger Kahn (collectively, Gentry) filed a special motion to strike the complaint (anti-SLAPP motion) under section 425.16. Gentry argued that Hoover based his complaint on Gentry’s protected activity (statements or writing in connection with a judicial proceeding), and Hoover could not carry his burden to prove a probability of prevailing on the merits. Specifically, Gentry argued Hoover could not establish two elements of the malicious prosecution claim: that he obtained a favorable termination of the underlying litigation and that Gentry lacked probable cause to prosecute the underlying case.
On July 24, Hoover filed in pro per an opposition to the anti-SLAPP motion. His points and authorities purported to cite supporting evidence for the arguments asserted, but most of the citations referenced inadmissible evidence. Hoover provided an “index of exhibits” identifying 30 documents attached to his opposition, but he neglected to include a declaration authenticating the documents. He did file a request for judicial notice of various attached documents. The only other attempt Hoover made at providing evidentiary support for his opposition was a “verification” under penalty of perjury that “[t]he matters stated in this Opposition... are true of my own knowledge except those matters stated on information and belief....”
On July 31, Gentry filed a reply to the opposition, an objection to Hoover’s request for judicial notice, “evidentiary objections” to Hoover’s opposition memorandum of points and authorities, and Gentry’s supporting declaration with various exhibits attached.
The trial court issued a tentative ruling granting Gentry’s anti-SLAPP motion and awarding Gentry attorney fees. At the hearing on the motion, Hoover did not argue, but merely submitted on the tentative ruling, stating he would bring a “motion for [re]consideration after I prepare my evidence, which hasn’t been considered at this point.” The trial court adopted the tentative ruling as the final ruling.
The ruling set forth in detail the court’s reasons for granting the motion. It stated defendants had made the requisite threshold showing that the challenged causes of action arose out of their protected activity, “namely... statements or writings made in connection with a judicial proceeding, ” and Hoover failed to satisfy his burden of showing a probability of prevailing on the merits. The trial court cited two separate grounds for the latter finding. First, the trial court held Hoover “failed to present any admissible evidence” to establish a prima facie case of malicious prosecution. In support of that finding, the court noted Hoover failed to supply a declaration authenticating his supporting exhibits, ruled Hoover’s “verification” of his memorandum of points and authorities did not “convert” that document into admissible evidence, and sustained Gentry’s objection to Hoover’s request for judicial notice.
The trial court’s second ground for finding Hoover failed to show a probability of prevailing on the merits was that Hoover could not establish “the underlying legal action resulted in a favorable termination for plaintiff” –– an element of malicious prosecution. Citing the judgment in the underlying action, the trial court explained: “The judgment states that neither side obtained relief and each side was to bear its own costs. Had plaintiff been the ‘prevailing party, ’ he would have been entitled to recover costs.”
On August 26, Gentry served Hoover by mail with notice of the order granting the anti-SLAPP motion. On August 31, Hoover made an ex parte application for an order extending the time for filing a motion for reconsideration of that order. In the application, Hoover asserted he had found counsel to represent him on the reconsideration motion, but counsel needed more time to prepare, and “[today] is the last day to file the motion.” The trial court denied the ex parte application.
The record does not support Hoover’s assertion of an August 31 deadline for filing a motion for reconsideration. Notice of the order granting Gentry’s anti-SLAPP motion was served on Hoover by mail on August 26. The applicable statute allows a party seeking reconsideration of an order 10 days after service to file the motion. (§ 1008.)
On September 1, Hoover filed a motion for reconsideration of the order granting the anti-SLAPP motion. Essentially, he argued the trial court granted the motion based on a “procedural technicality” –– his failure to authenticate the exhibits he submitted in support of his opposition. He blamed this “technical” defect on his “pro per” status. With the reconsideration motion, Hoover submitted a declaration authenticating the documents he had submitted with his original opposition, along with six new documents, and asked the court to reconsider its ruling in light of this “new” evidence.
Gentry opposed the motion for reconsideration on the ground it failed to satisfy the statutory requirements of stating “new or different facts, circumstances, or law[.]” The court agreed, and denied reconsideration at a hearing on October 2. On October 20, the trial court entered a judgment dismissing the complaint as to Gentry. On October 23, Hoover filed a notice of appeal from the judgment and the order granting the anti-SLAPP motion.
The Walley anti-SLAPP motion
Walley and the Walley firm (collectively, Walley or the Walley defendants) filed an anti-SLAPP motion on July 30, 2009, about three weeks after Gentry did. Walley argued that Hoover’s complaint arose from the Walley defendants’ protected speech (made in connection with a judicial proceeding), and that Hoover could not prevail on his claims against them because: (1) The Walley defendants “did not institute or maintain any proceeding against Hoover” as they “were neither party to, nor counsel for any party to” the underlying action; and (2) The claims for conspiracy and aiding and abetting are barred by the litigation privilege under Civil Code section 47, subdivision (b), and by Hoover’s failure to seek leave of court before making conspiracy allegations against an attorney, as required by Civil Code section 1714.10.
On August 17, Hoover, again in pro per, filed his opposition to the Walley defendants’ anti-SLAPP motion. The gist of the opposition was Hoover’s assertion that Walley was “the main driving force behind” the underlying action, despite the fact Walley was neither a plaintiff nor attorney of record in the action. Hoover also argued he could establish Walley lacked probable cause and acted maliciously in conspiring with Martin and Gentry to initiate the underlying action. This time, Hoover included a declaration purporting to authenticate the documents he submitted in his opposition.
In the final paragraph of his points and authorities, and not by separate motion, Hoover asked the court for “limited discovery” to establish that Walley, though “not the attorney of record, ” was “‘the man behind the scenes’” who was driving the underlying action, and thus liable for malicious prosecution. Hoover asserted the discovery “would include a deposition of defendants Walley, Gentry and Martin as well as a minor discovery request.”
On August 21, the Walley defendants filed a reply to Hoover’s opposition and an “omnibus objection” to Hoover’s “entire” opposition papers on the ground that it was filled with mere “beliefs” and lacked evidentiary support. The omnibus objection also argued that Hoover failed to properly authenticate the documents submitted with his opposition and also lodged specific objections to each paragraph of Hoover’s declaration.
On August 28, Hoover did not appear at the hearing on the anti-SLAPP motion, and the trial court granted the motion and awarded Walley attorney fees. The court’s ruling stated that Hoover “failed to sustain his burden –– proffering admissible evidence supporting a prima facie case of facts supporting judgment in his favor.” As for Hoover’s request for “‘limited discovery, ’” the court denied the request because Hoover failed to show “good cause” by noticed motion, as required under section 425.16, subdivision (g).
On September 11, 2009, Walley served Hoover by mail with notice of entry of the order granting the anti-SLAPP motion. That same day, Hoover filed a noticed motion for an order to conduct specified discovery under section 425.16, subdivision (g), and sought an ex parte order staying the proceedings until the court could hear his discovery motion. The trial court denied the ex parte application for a stay of proceedings.
According to the discovery motion, Hoover sought new, “relevant” evidence “to incorporate... into his opposition to the pending [anti-]SLAPP motions.” (Italics added.) At that point in the proceedings, however, the only pending anti-SLAPP motion was the one filed by defendants Martin and Footprints (see below).
Specifically, he asked for the following discovery: (1) information as to who paid Martin’s legal fees; (2) Martin’s psychiatric records; and (3) billing statements from Walley to Martin post August 2006, to prove Walley financed the underlying action.
On September 14, Hoover sought an ex parte extension to file a motion for reconsideration of the order granting Walley’s anti-SLAPP motion, urging the court to postpone the matter until after ruling on his discovery motion. The court denied the ex parte application.
Hoover did not file a motion for reconsideration. The hearing on his discovery motion was initially set for October 9, but then continued to November 6. Before the matter was heard, Hoover filed his notice of appeal, thereby divesting the trial court of jurisdiction.
The Martin anti-SLAPP motion
On August 21, 2009, defendants Martin and Footprints (collectively, Martin) filed an anti-SLAPP motion asserting that Hoover’s complaint arose out of their protected activities (statements or writings made in connection with a judicial proceeding), and that Hoover could not establish a prima facie case because he did not obtain a favorable termination in the underlying action.
Hoover in pro per filed an opposition to the special motion to strike, asserting that he did obtain a favorable termination of the underlying case, and that he could prove all the elements of malicious prosecution against Martin. Hoover submitted a declaration purporting to authenticate various attached exhibits, which he cited in his opposition papers.
Martin filed a reply to Hoover’s opposition, pointing out the trial court already had determined in the prior anti-SLAPP motions that Hoover did not prevail in the underlying action, and arguing that Hoover had not made a prima facie case for prevailing on the merits because he cited no admissible, relevant evidence to support his arguments.
The trial court agreed and granted the anti-SLAPP motion. The court ruled that “[m]ost, if not all the evidence attached to Plaintiff’s Declaration is hearsay and without foundation. Most importantly, however, even if it were the required admissible evidence, it does not establish that Martin... engaged in any non-protected action.” The court also found Hoover could not establish a favorable termination of the underlying action.
The trial court entered a judgment dismissing the action. On October 23, 2009, Hoover appealed from the judgment and the orders granting the anti-SLAPP motions.
II
Discussion
Hoover contends the trial court erred in granting each anti-SLAPP motion. He argues the court wrongly concluded he failed to meet his burden under section 425.16 to show a probability of prevailing on the merits of his malicious prosecution claims. Also, he contends the trial court abused its discretion when it ruled his evidence was inadmissible, and when it denied his application to conduct “limited discovery.” None of his claims has merit.
A. Hoover’s Failure to Show a Probability of Prevailing on the Merits
There is no real dispute that each of the defendants satisfied the first prong of the anti-SLAPP analysis in their moving papers: they established the challenged claims are based on protected activity. The burden then shifted to Hoover to establish a probability of prevailing on the merits. (§ 425.16, subd. (b)(1); Flatley v. Mauro (2006) 39 Cal.4th 299, 314 (Flatley).)
The contours of that burden are well established. “To show a probability of prevailing for purposes of section 425.16, a plaintiff must ‘“‘make a prima facie showing of facts which would, if proved at trial, support a judgment in plaintiff's favor.’”’ [Citation.]... [T]he plaintiff ‘cannot simply rely on the allegations in the complaint’ [citation], but ‘must provide the court with sufficient evidence to permit the court to determine whether “there is a probability that the plaintiff will prevail on the claim.”’ [Citation.]” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010.) “[I]n order to demonstrate a probability of success a plaintiff ‘must adduce competent, admissible evidence.’” (Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, 1147 (fn. omitted).)
To establish a claim for malicious prosecution, a plaintiff must demonstrate “‘that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].’ [Citations.]” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871-872 (Sheldon).) Hoover, however, made a prima facie showing on only one of these elements.
1. The Trial Court’s Finding on the “Favorable Termination” Element
The trial court here determined as a matter of law that Hoover could not establish as to any defendant an essential element of the malicious prosecution claim: a favorable termination of the underlying action. The trial court reasoned that because Judge Hunt specifically rejected Hoover’s claim to “prevailing party” status in the underlying action, and denied costs to either party because “neither side obtained relief, ” Hoover did not obtain the requisite favorable termination of the prior suit. We think that ruling is wrong.
The issues of whether there was a termination favorable to plaintiff, or an absence of probable cause in bringing the prior case, are questions of law to be determined by the court (Sheldon, supra, 47 Cal.3d at pp. 874-875), and thus are reviewed de novo.
The standard for establishing a “favorable termination” in the underlying action for a malicious prosecution claim is well known. “[T]ermination of the underlying action must reflect on the defendant’s innocence. ‘If [the termination] is of such a nature as to indicate the innocence of the accused, it is a favorable termination sufficient to satisfy the requirement. If, however, the dismissal is on technical grounds, for procedural reasons... it does not constitute a favorable termination.’ [Citation.]” (Lackner v. LaCroix (1979) 25 Cal.3d 747, 750.)
In the underlying action, Judge Hunt ruled on the merits of Martin’s cross-complaint against Hoover. He did not dismiss the case on technical grounds. Consequently, Hoover obtained a favorable termination of that prior action. The issue of prevailing party status for an award of costs under section 1032 is irrelevant to this inquiry.
This erroneous finding, however, does not warrant reversal because the trial court properly found an alternative ground for granting the anti-SLAPP motions: Hoover’s failure to present admissible evidence demonstrating a likelihood of prevailing on the merits.
2. The Trial Court’s Finding Hoover Failed to Make a Prima Facie Showing on the Other Elements of the Malicious Prosecution Claim
Because each defendant is differently situated from the others, and filed a separate anti-SLAPP motion, we consider each of these motions separately.
a. The Gentry anti-SLAPP motion
Hoover’s appeal from the order granting the Gentry anti-SLAPP motion is the easiest to resolve. Hoover, acting in pro per, failed in his opposition to offer any admissible evidence to support his malicious prosecution claim.
Hoover submitted no declaration to either authenticate the attached documents or to assert evidentiary facts upon personal knowledge. Moreover, the trial court properly concluded Hoover’s “verification” of his points and authorities did not “convert” any of its myriad factual assertions into evidence.
Hoover mistakenly asserts in his reply brief that the factual assertions in his “verified” memorandum of points and authorities constitute admissible evidence. Hoover’s reliance on Salma v. Capon (2008) 161 Cal.App.4th 1275 (Salma) is misplaced. In Salma, the court held verified allegations of evidentiary facts in pleadings, based on personal knowledge, are competent, admissible evidence in an anti-SLAPP motion. (Id. at pp. 1289-1290, 1293 [plaintiff relied on verified cross-complaint].) Hoover did not submit verified pleadings in support of his opposition, but rather simply attempted a sweeping verification of all the factual assertions in his points and authorities. The holding of Salma does not support his argument.
Though Hoover did file a proper request for judicial notice of certain attached court filings, Gentry aptly objected to Hoover’s attempt to use counsel’s argument and factual assertions in one of these documents, Plaintiff’s Opposition to Defendant’s Motion in Limine (exhibit F), as evidence supporting his malicious prosecution claim. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1569 [courts cannot take judicial notice of hearsay statements in a court file, including a trial court’s factual findings].)
Hoover did not appeal the denial of his reconsideration motion, and did not argue in his opening brief that the court erred in denying reconsideration. In his reply brief, however, Hoover argues that he is indeed appealing that order on the ground of abuse of discretion. Hoover waived the argument by failing to raise it in the opening brief. “‘“[P]oints raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before[.]”’ [Citations.]” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10.)
Because Hoover failed to submit any admissible evidence that would support a finding Gentry lacked probable cause to file the underlying action, or was motivated by malice in filing the action on Martin’s behalf, the trial court properly granted Gentry’s motion to strike the complaint as a SLAPP suit.
b. The Walley anti-SLAPP Motion
Hoover challenges on several grounds the trial court’s order granting this motion. None of his arguments has merit.
Curiously, Hoover argues the trial court erred in concluding his opposition was unsupported by admissible evidence because the court failed to specifically rule on Walley’s evidentiary objections. Hoover asserts Walley’s failure to ask the court for specific rulings on these evidentiary objections constituted a waiver of the objections, leaving the “evidence” in place.
The argument is meritless. The trial court stated in the minute order that Hoover failed to “proffer[] admissible evidence... of facts supporting judgment in his favor.” Implicit in that ruling is the finding Walley’s evidentiary objections to Hoover’s proffered evidence were meritorious. Consequently, Hoover’s waiver argument fails, as does the related argument that he carried his evidentiary burden in opposing the anti-SLAPP motion.
Most of Hoover’s effort in this appeal is directed at contesting the trial court’s finding he failed to show a probability of prevailing on the merits. To that end, Hoover devotes the majority of his opening and reply briefs to marshaling his “evidence” that the defendants lacked probable cause and were motivated by malice in filing the underlying action. Rather than analyze the admissibility and competency of all this evidence, issue by issue, we focus on Hoover’s failure to make a prima facie showing on one element of the malicious prosecution claim against Walley: proof “the prior action... was commenced by or at the direction of the defendant[.]” (Sheldon, supra, 47 Cal.3d at p. 871; Jacques Interiors v. Petrak (1987) 188 Cal.App.3d 1363, 1371-1372 [liability for malicious prosecution depends on proof defendant instigated or was actively instrumental in “‘putting the law in motion’”].)
Hoover makes two specific arguments regarding proof that Walley initiated the underlying action. First, he contends the element “is satisfied by the court’s own ruling” that Walley’s “‘statements and activities’” giving rise to the claim are protected activities under the anti-SLAPP statute. In other words, Hoover argues that by finding the alleged statements and activities are protected because made in connection with a judicial proceeding (§ 425.16, subd. (e)), the court necessarily also found Walley initiated that same judicial proceeding, as alleged. The argument is circular and fails. Contrary to Hoover’s assertion, a finding that the anti-SLAPP statute applies is not akin to a finding the defendant made the alleged statements or engaged in the alleged activities (here, “initiating” a lawsuit without probable cause).
Second, Hoover asserts proof Walley instituted the underlying action lies in Walley’s failure to prove he did not pay Martin’s fees. Hoover argues Walley’s declaration in support of the anti-SLAPP motion “is completely devoid of any defense to Hoover’s allegation that ‘Walley paid Martin’s fees’ in the underlying action. [¶]... Walley could have easily provided a declaration that says he didn’t pay Martin[’]s fees. But he couldn’t do that because he did pay her fees.”
By this argument, Hoover tries to shift the evidentiary burden to Walley to disprove this element of the claim. The argument fails. Once a defendant satisfies the first prong of the anti-SLAPP analysis by proving protected speech or conduct is at issue, the plaintiff has the burden to prove by admissible evidence a probability of prevailing on the merits. (Flatley, supra, 39 Cal.4th at p. 314.) Walley had no obligation to disprove Hoover’s claims; rather, Hoover had the duty to prove them.
We conclude the trial court properly found Hoover failed to establish a probability of prevailing on the merits against Walley. With no evidence Walley instituted or maintained the underlying action, Hoover cannot prove Walley is liable for malicious prosecution. (See Padres L.P. v. Henderson (2003) 114 Cal.App.4th 495, 522 [to defeat anti-SLAPP motion, plaintiff must produce evidence supporting all three elements of malicious prosecution tort].) Consequently, the trial court properly granted Walley’s anti-SLAPP motion.
We note an additional basis, asserted below by Walley but unremarked upon by the trial court, for finding Hoover could not prevail on his related claim of conspiracy to commit malicious prosecution: Hoover failed to satisfy the pre-filing requirement for alleging this claim against an attorney, per Civil Code section 1714.10, subdivision (a).
That statute provides: “No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney’s representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action....” (Civ. Code, § 1714.10, subd. (a); see Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2003) 107 Cal.App.4th 54, 82-83 [statutory pre-filing requirement applies to conspiracy claim except as to claims against attorney who conspires with client to cause injury by violating attorney’s own duty to plaintiff].) Because Hoover did not seek permission to file the conspiracy claim, it was statutorily barred.
c. The Martin anti-SLAPP Motion
Hoover argues the trial court erred in granting Martin’s anti-SLAPP motion because he proved all the elements of his malicious prosecution claim against her. Rather than examine the admissibility and competency of all the evidence Hoover cites in support of this assertion, we are persuaded to affirm the order by one fact: Hoover fails to present any admissible evidence to defeat Martin’s defense that she relied on advice of counsel.
“‘Probable cause may be established by the defendants in a malicious institution proceeding when they prove that they have in good faith consulted a lawyer, have stated all the facts to him, have been advised by the lawyer that they have a good cause of action and have honestly acted upon the advice of the lawyer.’ [Citations.]” (DeRosa v. Transamerica Title Ins. Co. (1989) 213 Cal.App.3d 1390, 1397-1398; Sosinsky v. Grant, supra, 6 Cal.App.4th at p. 1558.)
Martin asserted the “advice of counsel” defense in her anti-SLAPP motion. In opposing that motion, Hoover failed to submit admissible evidence proving Martin did not honestly rely on her counsel’s advice in filing the underlying action, or did not state all the facts to counsel. Thus, Hoover failed to make a prima facie showing he could defeat that defense. It follows necessarily that the court properly granted Martin’s special motion to strike the complaint. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) ¶ 7:1015, p. 7(II)-40 [to demonstrate a probability of success on the merits, “[p]laintiff must present evidence to overcome any privilege or defense to the claim that has been raised”], citing Flatley, supra, 39 Cal.4th at p. 323 [Civ. Code § 47, subd. (b) “litigation privilege presents a substantive defense plaintiff must overcome to demonstrate probability of success on the merits”].)
B. The Rulings Excluding Hoover’s Evidence
Hoover argues the trial court abused its discretion in excluding as “inadmissible” his evidence on each anti-SLAPP motion. He contends the evidence exclusion was essentially a “terminating sanction... based upon procedural error, ” which constitutes an abuse of discretion, citing Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1364 (Elkins). Hoover’s reliance on Elkins is misplaced.
In Elkins, the Supreme Court affirmed a judgment in favor of a pro per plaintiff who had violated “local procedural rules[.]” (Elkins, supra, 41 Cal.4that p. 1364.) The high court approved the trial court’s discretionary decision to overlook the “‘curable procedural defect’” in the plaintiff’s case, in the interest of not “crippling [the] litigant’s ability to present his or her case.” (Ibid.) The present situation is far different. Hoover is mistaken in characterizing his failure to present relevant, admissible evidence as a mere “procedural defect.”
Under the anti-SLAPP statute, once a defendant makes the threshold showing that the complaint is based on defendant’s protected conduct, the trial court must dismiss the complaint unless plaintiff presents “admissible evidence that, if credited, would be sufficient to sustain a favorable judgment.” (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108.) Requiring plaintiff to produce admissible, relevant proof sufficient to make a prima facie case is fundamental to the statute’s purpose of ending SLAPP suits early. (See Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 16 [“an overly lenient standard would be wholly inappropriate, given that the statute is intended to ‘provide[e] a fast and inexpensive unmaking and dismissal of SLAPP’s’”].) Consequently, Hoover’s failure to make the requisite evidentiary showing is not “procedural error” but a substantive defect in proof that doomed his opposition to the anti-SLAPP motion. The trial court did not abuse its discretion in rejecting the “evidence” Hoover proffered in opposition to the three anti-SLAPP motions here.
C. The Ruling Denying Hoover’s Discovery
Finally, Hoover argues the trial court abused its discretion in denying his request, included in the last paragraph of his opposition to the Walley motion, for “limited discovery.” He asserts the order denied him “fundamental fairness.” The argument lacks merit.
Section 425.16, subdivision (g), imposes a mandatory stay of “[a]ll discovery proceedings in the action” immediately upon the filing of an anti-SLAPP motion. The trial court has discretion to allow “specified discovery” only upon noticed motion and for good cause shown. (Ibid.) Hoover’s informal request for “limited discovery, ” inserted within the Walley opposition points and authorities, did not constitute a “noticed motion” within the meaning of the statute. Consequently, the trial court had no power to grant the request. “[I]n the absence of such a noticed motion, the anti-SLAPP statute prescribed the court’s power to allow or proceed with discovery proceedings, and the court lacked inherent power to act directly contrary to the statutory mandate.” (Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1129; see also Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357 [for purposes of opposing anti-SLAPP motion, declaration asserting need for discovery is ineffective; plaintiff must file noticed motion].)
Given Hoover’s failure to satisfy the procedural requirements of a noticed motion for discovery, we need not consider the merits of his purported “good cause” showing. We find the trial court properly denied Hoover’s informal request for discovery.
III
Disposition
The orders and judgment are affirmed. Defendants are entitled to their costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.