Opinion
C083171
12-20-2018
MAUREEN LAPIERRE, Plaintiff and Appellant, v. LOW MCKINLEY BALERIA & SALENKO, LLP, et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCV0037860)
Plaintiff Maureen LaPierre, in propia persona, purports to appeal from an order granting two separate special motions to strike pursuant to Code of Civil Procedure section 425.18 (the anti-SLAPPback statute), one by defendant Efrain Gonzalez, M.D., and another by defendant Low McKinley Baleria & Salenko, LLP (LMBS), a law firm representing Gonzalez in an underlying medical malpractice action. Following several years of litigation in the medical malpractice action and related bankruptcy proceedings, Gonzalez, through LMBS, commenced a separate action seeking a civil harassment restraining order against LaPierre under section 527.6. LaPierre prevailed on an anti-SLAPP motion to strike the civil harassment petition, and then filed a separate action against Gonzalez and LMBS (together, defendants), asserting causes of action for malicious prosecution, abuse of process and defamation. Defendants responded with anti-SLAPPback motions, arguing—successfully, as the trial court ruled—that LaPierre's causes of action arose from protected activity and lacked minimal merit. On appeal, LaPierre contends the trial court erred in concluding the causes of action for abuse of process and defamation arose from protected activity. She further contends the trial court erred in concluding that she failed to demonstrate a probability of prevailing.
Undesignated statutory references are to the Code of Civil Procedure.
An order granting a special motion to strike under section 425.18 is not appealable; the appeal is taken from the judgment. (§ 425.18, subd. (c).) Ordinarily, we would dismiss the appeal for lack of an appealable order. Here, however, the trial court entered a judgment of dismissal in favor of Gonzalez, which appears in the record and expressly refers to the order granting the special motions to strike. Accordingly, we shall exercise our discretion to treat the premature notice of appeal as having been taken from a subsequent judgment of dismissal in favor of Gonzalez. (Cal. Rules of Court, rule 8.104(d)(2).) In the interests of judicial economy, and to avoid piecemeal dispositions and costly multiple appeals, we shall amend the judgment to include LMBS, and treat the notice of appeal as having been taken from the amended judgment. (Ibid.) Having done so, we shall affirm.
I. BACKGROUND
A. Medical Malpractice Action
Gonzalez, a medical doctor, performed cosmetic surgery on LaPierre in 2011. LaPierre sued Gonzalez and his clinic, Advanced Medical Spa, Inc. (AMS), for medical malpractice the following year. The medical malpractice action was referred to confidential arbitration by stipulation of the parties in March 2013. The arbitration proceedings were stayed when AMS filed for Chapter 7 bankruptcy protection in September 2015. B. Criminal Proceedings
LaPierre's complaint refers to the clinic as "Advanced Med Spa;" however, the record indicates that the correct name of the clinic is, "Advanced Medical Spa, Inc."
In April 2013, the Placer County District Attorney filed a complaint against Gonzalez alleging crimes arising from various surgical procedures. Gonzalez later pled no contest to three wobblers, unrelated to any medical procedure performed on LaPierre. Throughout the criminal proceedings, LaPierre was an outspoken critic of Gonzalez, contacting news organizations and picketing the courthouse in Roseville. Beginning in February 2016, LaPierre also picketed the entrance to the gated community in which Gonzalez lived. C. Civil Harassment Action
LMBS was counsel for Gonzalez in the malpractice action. On February 11, 2016, LMBS sent LaPierre an email asking that she refrain from picketing outside Gonzalez's neighborhood, "as such behavior constitutes harassment of Dr. Gonzalez and his family." The email warned, "If you continue to harass Dr. Gonzalez and his family, this matter will be brought to the attention of the arbitrator in this case." "Further," the email concluded, "Dr. Gonzalez will consider all legal remedies available to him." LaPierre responded that she intended to continue picketing. Later that day, LaPierre sent another email to LMBS, on which she copied the Governor's office and a news organization. The email, which does not appear in the record, evidently touched upon matters subject to arbitration.
LaPierre does not appear to have been represented by counsel at the time.
On February 12, 2016, LMBS responded with a formal cease and desist letter to LaPierre, with a copy to the arbitrator in the medical malpractice action. The letter states that LaPierre's picketing "constitutes stalking and civil harassment within the meaning of . . . section 527.6." The letter acknowledges LaPierre's right to free speech, but argues that picketing outside a private residence exceeds the bounds of the First Amendment, and may be subject to appropriate time, place, and manner restrictions. (See, e.g., Frisby v. Schultz (1988) 487 U.S. 474, 484 [holding that a state has a significant interest in banning targeted picketing in front of private residences, where individuals are captive audiences to unwanted speech].) The letter warns, "If you persist in this course of action Dr. Gonzalez will be forced to obtain a restraining order against you." The letter also alleges that the email to the Governor's office and a news organization violated the trial court's arbitration order, and reserves "the right to pursue any and all available remedies under the law, both for violation of the court order and for reneging on the stipulation to confidentiality."
On February 19, 2016, Gonzalez, through LMBS, filed a Judicial Council form petition for a civil harassment restraining order against LaPierre. The petition seeks a stay away order directing LaPierre to stay at least 100 yards away from Gonzalez, his wife and two minor children, the family home, the entrance to the gated community, and the children's school. The petition was signed under penalty of perjury by Gonzalez and accompanied by a declaration of Thomas M. Garberson, an attorney with LMBS. The declaration avers that LaPierre was a frequent presence near the entrance to the gated community, displaying large posters with photographs of Gonzalez and his wife, and approaching passersby to warn them that Gonzalez was a threat to public safety. The declaration characterizes LaPierre's demeanor as "loud" and "aggressive," and avers, on information and belief, that LaPierre "was asked or instructed to leave on multiple occasions by private security and/or local law enforcement agencies." The declaration further avers that LaPierre's picketing activities made it difficult for Gonzalez and his family to "go about their daily business without being harassed." D. LaPierre's Anti-SLAPP Motion
On March 28, 2016, LaPierre, now represented by counsel, filed a special motion to strike the civil harassment petition pursuant to section 425.16 (the anti-SLAPP statute). The motion argued that LaPierre's picketing constituted constitutionally protected speech on a matter of public interest. LaPierre emphatically denied that she had been asked to leave the picketing area by law enforcement, denouncing the allegation as "utterly heretical . . . horsehocky." LaPierre submitted a declaration in support of the motion, attaching copies of police reports indicating that she had been contacted by police near the gates of the community, but suggesting that she was not asked to leave.
LaPierre did not indicate whether she had been asked to leave by private security.
Gonzalez opposed the anti-SLAPP motion, arguing that LaPierre's concededly peaceful picketing activity could nevertheless be subject to appropriate time, place, and manner restrictions. (See, e.g., Frisby v. Schultz, supra, 487 U.S. at p. 487 ["The First Amendment permits the government to prohibit offensive speech as intrusive when the 'captive' audience cannot avoid the objectionable speech"]; see also Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1250 ["In California, speech that constitutes 'harassment' within the meaning of section 527.6 is not constitutionally protected, and the victim of the harassment may obtain injunctive relief"].) In support of the opposition, Gonzalez submitted a declaration stating that LaPierre's picketing activity had taken an emotional toll on him and his family. Gonzalez averred that he felt like a prisoner in his own home, afraid to leave for fear that he might encounter LaPierre. Gonzalez acknowledged that LaPierre had not made any explicit threats against him, but indicated that her behavior was such that he feared "her obsession and stalking may escalate at any time." Gonzalez also averred that he was "mortified by the impact this ha[d] on [his] family."
LaPierre filed a reply in support of the special motion to strike, arguing inter alia that Gonzalez's statements regarding the emotional impact of her picketing activity were false. According to LaPierre, Gonzalez's professions of fear and mortification were inconsistent with his earlier representation, by means of a checked box on the Judicial Council form, that he had not been harmed or injured by the alleged harassment.
The trial court (Commissioner Michael A. Jacques) granted the special motion to strike, finding that LaPierre's picketing activity constituted protected conduct and Gonzalez failed to demonstrate a probability of prevailing on the merits. The trial court explained: "[Gonzalez's] submitted evidence merely establishes a feeling of embarrassment from [LaPierre's] peaceful public picketing." The trial court added that the submitted evidence "falls well short of establishing a 'course of conduct[,'] 'credible threats of violence[,'] or 'harassment' that would demonstrate, by clear and convincing evidence, harassment as required under [section ]526.7." Accordingly, Gonzalez's petition for a civil harassment restraining order was stricken. Gonzalez did not appeal from the trial court's order. E. SLAPPBack Action
A short time later, LaPierre, now acting in propia persona, commenced a separate SLAPPback action against LMBS and Gonzalez. The complaint asserted causes of action for defamation, abuse of process and malicious prosecution against Gonzalez and LMBS. We summarize the allegations constituting each cause of action below.
1. Defamation
The complaint alleged that LMBS made defamatory statements to the arbitrator in the medical malpractice action by means of the cease and desist letter. Specifically, the complaint alleged the letter defamed LaPierre by falsely accusing her of "stalking, yelling at, blocking residents and harassment." According to LaPierre, the letter "constitutes a defamation per se as [LMBS] and Gonzalez were acting with judicial malfeasance trying to manipulate the legal outcome of the Medical Malpractice case."
The complaint further alleged that LMBS made defamatory statements to Nabeel Zuberi, counsel for the Chapter 7 trustee for AMS. The complaint alleged in general terms that LMBS told Zuberi about the civil harassment action, but did not specify what was said to him, or by whom.
The complaint further alleged that LMBS "and/or" Gonzalez made defamatory statements to the Rocklin Police Department. LaPierre acknowledges on appeal that reports to police are protected by Civil Code section 47. (Comstock v. Aber (2012) 212 Cal.App.4th 931, 941-942 [filing police report constitutes protected activity].)
2. Abuse of Process
The complaint alleged that Gonzalez and LMBS knowingly prosecuted a meritless petition in the civil harassment action in order to harass, intimidate and silence LaPierre. The complaint further alleged that Gonzalez and LMBS made false statements in declarations and pleadings in the civil harassment and medical malpractice actions. The complaint further alleged that Gonzalez and LMBS falsified unspecified documents. According to LaPierre, these actions were part of a pattern of frivolous filings designed to stop her from speaking out against Gonzalez.
3. Malicious Prosecution
Finally, the complaint alleged a cause of action for malicious prosecution based on the civil harassment action. According to LaPierre, LMBS prosecuted the civil harassment action without probable cause, and despite the fact that no reasonable attorney would have believed the petition was legally tenable. LaPierre noted that the trial court granted her special motion to strike the petition, and reiterated that the civil harassment action was intended to silence her. LaPierre alleged that LMBS failed to investigate the civil harassment allegations, adding that the trial court found Gonzalez failed to support the allegations with clear and convincing evidence. F. Defendants' Anti-SLAPPback Motions
Defendants filed separate anti-SLAPPback motions pursuant to section 425.18 (the anti-SLAPPback statute), each supported by declarations and exhibits. Both motions argued the SLAPPback action arose from constitutionally protected petitioning activity. Both motions further argued that LaPierre could not demonstrate a probability of prevailing on any cause of action. Specifically, the motions argued that LaPierre's causes of action for defamation and abuse of process were barred by the litigation privilege (Civ. Code, § 47), and the civil harassment petition could not, as a matter of law, support the cause of action for malicious prosecution. (See Kenne v. Stennis (2014) 230 Cal.App. 4th 953, 969-970 (Kenne) [holding that a malicious prosecution claim cannot, as a matter of law, be based on the filing of a civil harassment petition under section 527.6]; Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1574 (Siam) [same].)
LaPierre opposed the anti-SLAPPback motions, arguing the litigation privilege was inapplicable to her malicious prosecution cause of action, and reiterating that no reasonable attorney would have thought the civil harassment action legally tenable.
The trial court heard argument and took the matter under submission. The trial court then issued a ruling on submitted matters, granting both motions. The trial court concluded that all causes of action arose from protected activity, thereby shifting the burden to LaPierre to demonstrate a probability of prevailing on the merits. With respect to the defamation cause of action, the trial court found that LaPierre could not demonstrate a probability of prevailing as the allegedly defamatory statements were made in contemplation of litigation, and were therefore protected by the litigation privilege. With respect to the abuse of process and malicious prosecution causes of action, the trial court concluded that LaPierre failed to demonstrate a probability of prevailing on the merits because she failed to present sufficient evidence of malice. The trial court explained: "The evidence presented to the court tends to show a valid dispute between the parties over the scope of [LaPierre's] right to free speech under the First Amendment. The submitted documentation seems to support that just as [LaPierre] had the right to protect her freedom of speech by bringing her anti-SLAPP motion in the civil harassment case, so too did [Gonzalez] have the right to initiate an action challenging the boundaries between [LaPierre's] First Amendment right and his belief the acts amounted to harassment." Accordingly, the trial court granted the anti-SLAPPback motions and struck the entire complaint. G. The Judgment and Appeal
The trial court entered the order granting defendants' anti-SLAPPback motions on September 22, 2016. LaPierre filed a notice of appeal on October 4, 2016. The notice of appeal refers to the trial court's September 22, 2016, order.
The trial court entered a judgment of dismissal in favor of Gonzalez on October 6, 2016. The judgment of dismissal refers to the trial court's September 22, 2016, order. No judgment of dismissal in favor of LMBS appears in the record.
II. DISCUSSION
We would ordinarily begin with the threshold issue of appealability. (Olson v. Cory (1983) 35 Cal.3d 390, 398 ["since the question of appealability goes to our jurisdiction, we are dutybound to consider it on our own motion"].) In this case, however, the answer to the question of appealability requires an understanding of the applicable statutory scheme. Accordingly, we begin with an overview of the anti-SLAPP statute (section 425.16) and its close relative, the anti-SLAPPback statute (section 425.18). A. Statutory Background
1. The Anti-SLAPP Statute
Section 425.16 provides a procedural remedy to dispose of meritless lawsuits that are brought to chill the valid exercise of the constitutional right of petition or free speech. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.) A cause of action arising from an act in furtherance of the defendant's constitutional right of petition or free speech in connection with a public issue is subject to a special motion to strike under section 425.16 unless the plaintiff demonstrates a probability of prevailing on the claim. (§ 425.16, subd. (b)(1); Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819-820 (Oasis).) The defendant bears the initial burden of showing that the cause of action arises from protected activity. If the defendant satisfies this burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (Oasis, supra, at pp. 819-820.)
A plaintiff establishes a probability of prevailing on the claim by showing that the complaint is legally sufficient and supported by a prima facie showing of facts that, if credited, would support a judgment in the plaintiff's favor. (Oasis, supra, 51 Cal.4th at p. 820.) The court does not weigh the evidence, but determines as a matter of law whether the evidence is sufficient to support a judgment in the plaintiff's favor. (Taus v. Loftus (2007) 40 Cal.4th 683, 714.) The defendant can defeat the plaintiff's showing by presenting evidence that establishes as a matter of law that the plaintiff cannot prevail. (Oasis, supra, at p. 820.) An order granting a special motion to strike under section 425.16 is immediately appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13); City of Costa Mesa v. D'Alessio Investtments, LLC (2013) 214 Cal.App.4th 358, 371.)
2. The Anti-SLAPPback Statute
A SLAPPback is a cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior action that was dismissed on a special motion to strike. (§ 425.18, subd. (b)(1).) The purpose of a SLAPPback is to seek compensation for damages beyond the attorneys' fees and costs awarded to the defendant who prevails on the special motion to strike under the anti-SLAPP statute. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 279-280 (Soukup).)
A SLAPPback defendant may file a special motion to strike the complaint under section 425.18. (West v. Arent Fox LLP (2015) 237 Cal.App.4th 1065, 1071 (West).) Section 425.18, subdivision (a) declares, " 'a SLAPPback cause of action should be treated differently, as provided in this section, from an ordinary malicious prosecution action because a SLAPPback is consistent with the Legislature's intent to protect the valid exercise of the constitutional rights of free speech and petition by its deterrent effect on SLAPP (strategic lawsuit against public participation) litigation and by its restoration of public confidence in participatory democracy.' (§ 425.18, subd. (a).)" (Soukup, supra, 39 Cal.4th at p. 281.)
Our Supreme Court enumerated the differences between the anti-SLAPP statute (section 425.16) and the anti-SLAPPback statute (section 425.18) in Soukup. (Soukup, supra, 39 Cal.4th at pp. 281-282.) The Court observed that section 425.18 "makes inapplicable to special motions to strike a SLAPPback certain procedures that would normally apply to such motions and sets forth different procedures." (Ibid.) Among other things, the anti-SLAPPback statute extends the time in which to bring a special motion to strike, and gives the plaintiff the ability to conduct discovery to resist such a motion. (Id. at p. 282, citing § 425.18, subds. (d)-(e).) As we shall discuss, section 425.18 also establishes special rules for appellate review of anti-SLAPPback motions. (§ 425.18, subds. (c) & (g).) B. Appealability
The existence of an appealable order is a jurisdictional prerequisite to an appeal. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) As indicated above, section 425.18 establishes "special rules for appellate review of SLAPPback motions that differ from rules for review of SLAPP motions generally. While the latter are governed by sections 425.16, subdivision (i) and 904.1, subdivision (a)(13), which make review of orders granting or denying a special motion to strike subject to the usual appellate process, the Legislature expressly determined that SLAPPback motions are to be reviewed by a different procedure. Thus, section 425.18, subdivision (c) expressly disallows use of section 904.1, subdivision (a)(13) as a basis for appeal of a ruling on a SLAPPback, providing that '[t[he provisions of . . . paragraph (13) of subdivision (a) of Section 904.1 shall not apply to a special motion to strike a SLAPPback.' (§ 425.18, subd. (c).)" (West, supra, 237 Cal.App.4th at p. 1071.)
"The Legislature specified a different manner for appellate review of most rulings on special motions to strike SLAPPback claims in enacting section 425.18, subdivision (g). This section provides: 'Upon entry of an order denying a special motion to strike a SLAPPback claim, or granting the special motion to strike as to some but less than all causes of action alleged in a complaint containing a SLAPPback claim, an aggrieved party may, within 20 days after service of a written notice of the entry of the order, petition an appropriate reviewing court for a peremptory writ.' (§ 425.18, subd. (g).)" (West, supra, 237 Cal.App.4th at p. 1071.) Unlike an order denying a special motion to strike a SLAPPback action, or granting the motion as to some but not all claims, an order granting a special motion to strike in its entirety is not immediately appealable; appellate review of such an order must await appeal from a final judgment.
LaPierre purports to appeal from the order granting defendants' anti-SLAPPback motions under section 425.16, subdivision (i) and section 904.1, subdivision (a)(13). However, these provisions do not apply to a special motion to strike pursuant to section 425.18. (§ 425.18, subd. (c).) Recognizing this problem, defendants suggest that the order disposed of all issues between the parties, and was therefore tantamount to a final, appealable judgment. We agree with defendants (and, presumably, LaPierre) that, in the circumstances of this case, the order operates as the functional equivalent of a final judgment. (§ 904.1, subd. (a)(1); see also Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 878 ["An order striking a pleading is ordinarily not appealable. . . . But where the order operates to remove from the case the pleader's only cause of action, or defense, or leaves no further issue to be determined between him and his adversary, such an order is appealable"]; Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 370 [though order granting motion to strike is ordinarily nonappealable, it is appealable as a final judgment if it removes the only cause of action alleged and leaves no issues to be determined]; see Wilson v. Sharp (1954) 42 Cal.2d 676, 677 ["The order granting the motion to strike operated to remove from the case the only cause of action alleged against the county counsel and to leave no issues to be determined between him and plaintiff, and it was appealable as a 'final judgment' within the meaning of section 963 [now 904.1]"].)
As noted, the record contains a judgment of dismissal in favor of Gonzalez, which is dated October 6, 2016 (two days after the notice of appeal), and expressly refers to the trial court's ruling on the anti-SLAPPback motions. The California Rules of Court "allow us to 'treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment.' (Cal. Rules of Court, rule 8.104, (d)(2).)" (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1189.) Because an appealable judgment was ultimately entered, we deem LaPierre's premature notice of appeal to have been filed immediately after the trial court entered judgment in favor of Gonzalez, and liberally construe the appeal as having been taken from the judgment. (Id. at pp. 1189-1190; Cal. Rules of Court, rule 8.104(d).)
No judgment of dismissal in favor of LMBS appears in the record, and we assume no such judgment was entered. Even so, we need not dismiss the appeal as to LMBS. We note that the order granting the special motion to strike dropped a contemporaneously filed demurrer by LMBS as moot, indicating that the trial court deemed the matter fully disposed of. To promote the orderly administration of justice, and to avoid the waste of judicial and litigant time that would result from dismissing the appeal as to LMBS merely to have a judgment formally entered in the trial court and a new appeal filed, we will amend the existing judgment in favor of Gonzalez to include LMBS, and exercise our discretion to treat the premature notice of appeal as having been taken from the amended judgment. (See, e.g., Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 741 ["Judgments that leave nothing to be decided between one or more parties and their adversaries, or that can be amended to encompass all controverted issues, have the finality required by section 904.1, subdivision (a)"]; see also Tenhet v. Boswell (1976) 18 Cal.3d 150, 154 [appellate court may amend judgment where trial court's failure to dispose of all claims results from inadvertence rather than an intention to retain the remaining claims].) Having satisfied ourselves that we have jurisdiction, we now turn to the merits of LaPierre's appeal. C. Standard of Review
We review an order granting a motion to strike a SLAPPback suit de novo, applying the same two-step procedure as the trial court, just as we would an anti-SLAPP motion. (Soukup, supra, 39 Cal.4th at p. 269, fn. 3.) We consider the pleadings and declarations, accepting as true the evidence that favors the plaintiff and evaluating the defendant's evidence " 'only to determine if it has defeated that submitted by the plaintiff as a matter of law.' [Citation.]" (Ibid.) If the trial court's decision granting or denying an anti-SLAPP motion is correct on any theory applicable to the case, we may affirm the order regardless of the correctness of the grounds on which the trial court reached its conclusion. (Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566, 573.) D. Arising from Protected Activity
As noted, defendants had the burden to show the challenged causes of action arise from protected activity. (Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 819.) "A claim arises from protected activity when that activity underlies or forms the basis for the claim." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.) Whether a claim is based on protected activity turns on "whether the ' "core injury-producing conduct" ' warranting relief under the cause of action is protected." (Mission Beverage Co. v. Pabst Brewing Co. (2017) 15 Cal.App.5th 686, 698.)
Applying these standards, we have little difficulty concluding that LaPierre's claims arise from protected activity. LaPierre's causes of action for abuse of process and malicious prosecution are expressly based on the prosecution of the civil harassment action, which indisputably constitutes protected activity. (§ 425.16, subd. (e); see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735 [malicious prosecution action arose from protected petitioning activity in filing the underlying lawsuit].) LaPierre's defamation cause of action is based on statements made in anticipation of litigation in the cease and desist letter and a telephone conversation in which LMBS told Zuberi about the civil harassment action. As LaPierre appropriately acknowledges, such communications are ordinarily considered protected activity within the meaning of section 425.16. (See, e.g., Malin v. Singer (2013) 217 Cal.App.4th 1283, 1299 [demand letter threatening litigation was protected activity]; Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1368 [litigation update to persons having some involvement in litigation constituted protected activity].)
LaPierre does not meaningfully contest the trial court's conclusion that her claims arise from protected activity. Instead, she argues the anti-SLAPPback statute does not apply because defendants' activities were illegal as a matter of law. Specifically, LaPierre argues the cease and desist letter constitutes extortion, and LMBS violated rules 5-100(A) (threatening criminal action to obtain advantage in civil dispute), rule 5-120 (trial publicity) and rule 5-200 (trial conduct) of the Rules of Professional Conduct. We are not persuaded.
Further undesignated references to rules are to the Rules of Professional Conduct.
Our Supreme Court recognized a narrow exception to the anti-SLAPP statute for illegal activity in Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley). There, the plaintiff sued the defendant, an attorney, for civil extortion and other torts. (Id. at p. 306.) The plaintiff's action was based on a letter the attorney sent to the plaintiff, which claimed that the plaintiff had raped the attorney's client and demanded a substantial payment to settle the client's claims. (Id. at pp. 307-308.) The attorney filed a special motion to strike the action, arguing the letter was a prelitigation settlement offer, and therefore the claims arose from the attorney's exercise of his constitutionally protected right of petition. (Id. at p. 311.) The trial court denied the motion, and the court of appeal affirmed, holding that the anti-SLAPP statute did not apply because the attorney's letter constituted criminal extortion as a matter of law. (Id. at p. 305.)
The Supreme Court affirmed, holding that section 425.16 does not apply to illegal activity. (Flatley, supra, 39 Cal.4th at p. 305.) However, the Supreme Court made clear that the illegality exception is very "narrow" and only applies "where either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence." (Id. at p. 316, italics added.) By contrast, if a factual dispute exists about the legitimacy of the defendant's conduct, such dispute "cannot be resolved within the first step [of the anti-SLAPP analysis] but must be raised by the plaintiff in connection with the plaintiff's burden to show a probability of prevailing on the merits." (Ibid.)
Our Supreme Court addressed an analogous illegality exception in the anti-SLAPPback statute in Soukup, a companion case to Flatley decided the same day. (Soukup, supra, 39 Cal.4th at p. 283.) There, the court was concerned with section 425.18, subdivision (h), which provides: "A special motion to strike may not be filed against a SLAPPback by a party whose filing or maintenance of the prior cause of action from which the SLAPPback arises was illegal as a matter of law." (Italics added.) The court noted that, in adopting the italicized language, the Legislature "appears to have had in mind decisions by the Court of Appeal that have held that the anti-SLAPP statute is not available to a defendant who claims that the plaintiff's cause of action arises from assertedly protected activity when that activity is illegal as a matter of law and, for that reason, not protected by the First Amendment." (Soukup, supra, at p. 284.) The court adopted a similar interpretation of section 425.18, subdivision (h), noting that the plaintiff bears the burden of establishing that the underlying action was illegal as a matter of law, and describing the applicable burden-shifting analysis as follows: "[O]nce the defendant has made the required threshold showing that the challenged action arises from assertedly protected activity, the plaintiff may counter by demonstrating that the underlying action was illegal as a matter of law because either the defendant concedes the illegality of the assertedly protected activity or the illegality is conclusively established by the evidence presented in connection with the motion to strike. In doing so, the plaintiff must identify with particularity the specific statute or statutes violated by the filing and maintenance of the underlying action. [Citation.] This requirement of identifying a specific statute, violation of which the plaintiff contends is illegal as a matter of law, is consistent with the narrow nature of the exemption set forth in section 425.18, subdivision (h) because it prevents a plaintiff from advancing a generalized claim that defendant's conduct was illegal and therefore subject to exemption. In this same vein, the requirement of specificity provides notice to both the defendant and the court about the particular statute or statutes the defendant is alleged to have violated as a matter of law so as to allow the defendant to intelligibly respond to, and the court to assess, the claim. Additionally, as part of the plaintiff's burden of demonstrating illegality as a matter of law, the plaintiff must show the specific manner in which the statute or statutes were violated with reference to their elements. A generalized assertion that a particular statute was violated by the filing or maintenance of the underlying action without a particularized showing of the violation will be insufficient to demonstrate illegality as a matter of law." (Soukup, supra, at pp. 287-288.) The Soukup Court rejected the argument that the phrase "illegal as a matter of law," as used in section 425.18, subdivision (h), should be construed to refer only to criminal violations. (Id. at p. 283 [explaining that the phrase "illegal as a matter of law" reaches acts that are "[f]orbidden by law"]; id. at p. 283, fn. 12.)
LaPierre fails to demonstrate that the illegality exception to the anti-SLAPPback statute applies here. Contrary to LaPierre's contention, defendants have never conceded that they engaged in extortion. Nor have they conceded that LMBS violated any of the rules. We therefore consider whether LaPierre presented evidence in opposition to the special motions to strike that conclusively established any alleged illegality as a matter of law. We find she did not.
LaPierre argues, as she did in the trial court, that the cease and desist letter constituted extortion as a matter of law. "Extortion is the obtaining of property or other consideration from another, with his or her consent . . . induced by a wrongful use of force or fear." (Pen. Code, § 518, subd. (a).) On its face, the cease and desist letter only threatens litigation in the event that LaPierre continued to "harass" Gonzalez. The cease and desist letter does not make any demand for money or property, and nothing in LaPierre's declarations or documentary evidence suggests that anyone said anything to lead LaPierre to believe that the letter should be understood to make such a demand. (Cf. Flatley, supra, 39 Cal.4th at p. 332 [noting that "any doubt as to [the] extortionate character of [the defendant's demand] letter" was dispelled by evidence of telephone calls in which the defendant set deadlines for payment].)
Relying on Stenehjem v. Sareen (2014) 226 Cal.App.4th 1405 (Stenehjem), LaPierre observes that the absence of a specific monetary demand does not preclude a finding that the cease and desist letter was extortionate as a matter of law. (Id. at p. 1425.) LaPierre's reliance on Stenehjem is misplaced. There, a former employee sent a demand email that "threatened to expose [the president and chief executive officer of his former employer] to federal authorities for alleged violations of the False Claims Act unless he negotiated a settlement of [the employee's] private claims." (Id. at p. 1423.) The court rejected the former employee's argument that the email was not extortionate because it did not include a demand for money, holding, "The absence of either an express threat or a demand for a specific sum of money in the e-mail does not negate its fundamental nature as an extortionate writing." (Id. at p. 1424.) Here, by contrast, there is no evidence that LMBS sought to obtain anything by way of the alleged threat, other than an end to an activity they deemed to infringe upon Gonzalez's rights. In the absence of any evidence of a demand for money or property, express or implied, "we do not find this to be one of those rare cases in which there is uncontroverted and uncontested evidence that establishes the crime as a matter of law." (Cross v. Cooper (2011) 197 Cal.App.4th 357, 386.) Accordingly, we agree with the trial court that LaPierre failed to conclusively establish extortion as a matter of law, and failed to deprive the cease and desist letter of its protected status. (See, e.g., Kashian v. Harriman (2002) 98 Cal.App.4th 892, 910-911 ["conduct that would otherwise come within the scope of the anti-SLAPP statute does not lose its coverage . . . simply because it is alleged to have been unlawful or unethical"].)
LaPierre also argues the cease and desist letter amounts to a violation of rule 5-100(A), which provides: "A member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute." Rule 5-100(A) has no obvious application here. The cease and desist letter does not threaten criminal, administrative or disciplinary charges. The letter threatens civil litigation to secure a civil remedy—a restraining order—and expressly refers to the applicable statute in the Code of Civil Procedure. Nothing in the record suggests that anyone said anything to lead LaPierre to believe that the letter should be understood to threaten criminal, administrative, or disciplinary charges. And even if the letter could be understood to do so, LaPierre fails to explain how such a threat would have conferred an advantage on defendants in the medical malpractice action, or any other civil dispute. LaPierre implies that LMBS sought to gain an advantage in the medical malpractice action by embarrassing her in front of the arbitrator, but we are not convinced that rule 5-100(A) was intended to reach such conduct. It seems more likely that rule 5-100(A) was intended to prohibit members from threatening criminal, administrative, or disciplinary charges in exchange for a tangible concession, such as the payment of money or the relinquishment of a property right. (See, e.g., Kinnamon v. Staitman & Snyder (1977) 66 Cal.App.3d 893, 895, disapproved on other grounds in Silberg v. Anderson (1990) 50 Cal.3d 205, 219 [attorneys violated former rule 7-104, which prohibited attorneys from making threats of criminal prosecution to gain advantage in civil proceeding, by advising the plaintiff, in a letter attempting to collect a debt, that it is a misdemeanor to issue a check with insufficient funds].) We need not reach this question, however, as LaPierre failed to conclusively establish that LMBS threatened to present criminal, administrative, or disciplinary charges against her.
LaPierre also argues the cease and desist letter constitutes a violation of rule 5-120(A), which provides: "A member who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." Again, LaPierre offered no evidence—let alone conclusive evidence—establishing that LMBS violated the rule. We assume without deciding that the cease and desist letter, though copied to the arbitrator, was nevertheless an "extrajudicial statement." (See, e.g., Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 714 [noting that contractual arbitration involves a forum "alternative to, and independent of, the judicial"].) Even so assuming, nothing in the record leads us to believe that LMBS disseminated information to the public, or had a reasonable belief that the arbitrator would do so. To the contrary, the cease and desist letter raises an inference that LMBS wanted to keep the picketing dispute out of the public eye, and sought the arbitrator's assistance in doing so. Regardless, LaPierre fails to conclusively establish that LMBS violated rule 5-120(A) by sending the cease and desist letter to the arbitrator. Likewise, and for the same reasons, LaPierre failed to conclusively establish that LMBS violated rule 5-120(A) by telling Zuberi about the civil harassment action.
Finally, LaPierre argues that LMBS violated rule 5-200 by submitting a "perjurious declaration" in opposition to her special motion to strike the civil harassment petition. Rule 5-200 provides, in pertinent part, that a member, in presenting a matter to a tribunal, "Shall employ . . . such means only as are consistent with truth," and "[s]hall not seek to mislead the judge . . . by an artifice or false statement of fact or law." (Rule 5-200(A) & (B).) As near as we can tell, LaPierre contends the Gonzalez declaration violated rule 5-200 by falsely averring that LaPierre's picketing caused Gonzalez to feel concerned for his safety and that of his family. As support for the claim that Gonzalez perjured himself, LaPierre points to the Judicial Council form of petition, in which Gonzalez represented that he had not been harmed or injured by the alleged harassment. Again, LaPierre failed to conclusively establish a violation of the rule as a matter of law.
At the outset, we observe that LaPierre failed to specify rule 5-200 in her opposition papers, in violation of the requirement that she "provide[] notice to both the defendant and the court" as to the particular statute alleged to have been violated, "so as to allow the defendant to intelligibly respond to, and the court to assess, the claim." (Soukup, supra, 39 Cal.4th at p. 287.) Had she done so, we think it likely that defendants would have disputed the alleged violation, arguing the petition and declaration are neither false nor inconsistent with one another. The trial court would have then confronted a factual dispute as to the truth or falsity of the declaration, precluding a conclusion, as a matter of law, that LMBS violated rule 5-200. (Flatley, supra, 39 Cal.4th at p. 316 ["If . . . a factual dispute exists about the legitimacy of the defendant's conduct, it cannot be resolved within the first step [of the anti-SLAPP analysis] but must be raised by the plaintiff in connection with the plaintiff's burden to show a probability of prevailing on the merits"].) In any case, based on our independent review, we cannot say the evidence presented in connection with the anti-SLAPPback motions conclusively established a violation of rule 5-200 as a matter of law.
For all of the foregoing reasons, we conclude that LaPierre failed to carry her burden of showing that the illegality exception applies. We therefore conclude that LaPierre's claims arise from protected activity. E. Probability of Prevailing
Having concluded defendants met the threshold burden of showing LaPierre's claims arise from protected activity, we next consider whether LaPierre met her burden of establishing a probability of prevailing on the merits. "To establish a probability of prevailing, the plaintiff 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.' [Citations.]" (Soukup, supra, 39 Cal.4th at p. 291.) The plaintiff may not rely solely on the allegations of the complaint, even if verified, but must proffer competent admissible evidence in opposition to the motion. (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 673.) The motion must be granted if " 'the allegations made or the evidence adduced in support of the [plaintiff's] claim, even if credited, are insufficient as a matter of law to support the judgment . . . .' [Citation.]" (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1238.)
1. Defamation
" 'The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or cause special damage.' " (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312 (Doe 2); accord, Taus v. Loftus, supra, 40 Cal.4th at p. 720.) The trial court found that LaPierre failed to establish a probability of prevailing on her defamation claims because the allegedly defamatory statements were protected by the litigation privilege. We agree that LaPierre has not established a probability of prevailing on her defamation claims, albeit for slightly different reasons.
The complaint alleges that LMBS defamed LaPierre in the cease and desist letter and in a telephone conversation with Zuberi. The complaint is unclear as to what LMBS told Zuberi; however, LaPierre submitted a declaration in opposition to the anti-SLAPPback motions indicating that an attorney from LMBS said, in substance, that "LaPierre was harassing Gonzalez, resulting in the restraining order application." LaPierre does not suggest that either of these communications falsely relayed the essential facts regarding her picketing activity. Instead, relying on the principle that false accusations of criminal conduct are defamatory on their face (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1127), LaPierre suggests the communications were defamatory to the extent they characterized her picketing activity as "harassing" and asserted that her conduct constituted stalking and civil harassment within the meaning of section 527.6. We are not convinced.
As noted, the complaint also alleges that LMBS and/or Gonzalez defamed LaPierre in one or more reports to police; however, LaPierre now acknowledges that police reports are protected by the litigation privilege. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 364-365; Williams v. Taylor (1982) 129 Cal.App.3d 745, 753.) We therefore consider that allegation to have been abandoned.
"Because a defamatory statement must contain a provable falsehood, courts distinguish between statements of fact and statements of opinion for purposes of defamation liability." (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1261; see Doe 2, supra, 1 Cal.App.5th at p. 1313 ["an allegedly defamatory statement must make an assertion of fact that is provably false"].) "It is the province of the court to determine whether a statement is actionable as a statement of fact susceptible of a defamatory meaning, versus a nonactionable statement of opinion privileged under the First Amendment." (Doe 2, supra, at p. 1312; see Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260 ["This is a question of law to be decided by the court"].) In making this determination, courts consider the " 'totality of the circumstances.' " (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1370; Baker, supra, at p. 260.) Relevant circumstances include "the language of the statement," "the context in which the statement was made," and "the knowledge and understanding of the audience to whom the publication was directed." (Baker, supra, at pp. 260, 261.) "This contextual analysis demands that courts look at the nature and full content of the communication . . . ." (Id. at p. 261; see Doe 2, supra, at p. 1313 [" 'The context of a defamatory imputation includes all parts of the communication that are ordinarily heard or read with it' "].)
We conclude the challenged statements are nonactionable statements of opinion, rather than actionable statements of fact. LaPierre does not argue that the cease and desist letter contains any provably false assertion of fact. Nor does she suggest that LMBS made any provably false statements to Zuberi. Instead, she challenges LMBS's characterization of her picketing activity as "harassing" and its opinion, based on its analysis of the facts, that LaPierre's conduct constitutes stalking and civil harassment. Although we agree with LaPierre that false accusations of criminal conduct are defamatory on their face (assuming they are not privileged), we cannot agree that LMBS defamed her by offering an unfavorable legal analysis of admittedly true facts. Considering the totality of the circumstances, including the context in which the statements were made, we are confident that the arbitrator and Zuberi would have understood the statements to convey an advocate's opinion, on behalf of his or her client, that LaPierre's conduct was actionable, rather than a provably false factual assertion that LaPierre committed a crime. But even assuming for the sake of argument that the challenged statements were provably false, we would conclude, as the trial court did, that they are protected by the litigation privilege.
Civil Code section 47, subdivision (b)(2) creates an absolute litigation privilege, barring all tort claims other than for malicious prosecution based on statements or other communications made in a judicial proceeding. (Flatley, supra, 39 Cal.4th at p. 322; Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.) " ' "The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." [Citation.] The privilege "is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards." ' [Citations.] And judicial or quasi-judicial proceedings are ' "defined broadly to include 'all kinds of truth-seeking proceedings,' including administrative, legislative and other official proceedings." ' [Citation.] '[T]he communication must be " 'in furtherance of the objects' " of the proceeding, which is " 'part of the requirement that the communication be connected with, or have some logical relation to, the [proceeding], i.e., that it not be extraneous to the [proceeding].' " ' [Citations]." (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1272.)
"The litigation privilege is absolute and broadly applied regardless of malice. [Citation.] Its purposes are to ' "afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, and to promote complete and truthful testimony, to give finality to judgments and to avoid unending litigation." ' [Citation.] It promotes effective judicial proceedings by encouraging full communication with the courts. [Citation.] Accordingly, doubts as to whether the privilege applies are resolved in its favor. [Citations.]" (Falcon v. Long Beach Genetics, Inc., supra, 224 Cal.App.4th at p. 1272.)
LaPierre argues the challenged statements "were not made to 'achieve the objects of the litigation,' " but were instead made to prejudice her in the underlying medical malpractice action and bankruptcy proceedings. To the extent that LaPierre contends the litigation privilege should not apply because LMBS harbored ulterior motives for copying the arbitrator and speaking with Zuberi, we reject the contention. We reiterate that the privilege applies "regardless of malice." (Falcon v. Long Beach Genetics, Inc., supra, 224 Cal.App.4th at p. 1272.) Having declined LaPierre's invitation to consider LMBS's motives, we next consider whether the challenged statements were "connected with, or have some logical relation to," a judicial or quasi-judicial proceeding. As we shall discuss, they clearly do.
With respect to the cease and desist letter, we note that the litigation privilege applies to communications made in private arbitration proceedings. (See Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 709.) For the privilege to attach, it is not necessary that the challenged communication " 'be relevant or material to an issue before the tribunal but need only have some proper connection or relation to the proceeding and in achieving its objectives.' " (Costa v. Superior Court (1984) 157 Cal.App.3d 673, 677.) The cease and desist letter, though not relevant to the medical malpractice claims, had the requisite connection or relation to the arbitration proceedings. The cease and desist letter anticipated a new front in the overall litigation between the parties, most of which, though stayed, was subject to binding arbitration. This change in the litigation landscape was obviously relevant to the arbitration proceedings, which had, until recently, served as the principal forum for resolution of the parties' original dispute. And, if there were any question that the cease and desist letter had the requisite connection to the arbitration proceedings, the letter itself alleges that LaPierre violated the terms of the arbitration by emailing confidential arbitration materials to the Governor's office and the news media. On this record, we conclude that the publication of the cease and desist letter to the arbitrator was logically related to the arbitration proceedings and protected by the litigation privilege.
LaPierre challenges LMBS's stated reasons for copying the arbitrator, noting that LMBS threatened to bring her picketing activity to the arbitrator's attention before she emailed the Governor's office and a news organization. We reiterate that LMBS's ulterior motives, if any, are irrelevant.
With respect to the statements to Zuberi, LaPierre argues the statements were not made to achieve the objects of the litigation because the civil harassment petition was not related to the bankruptcy proceedings, and there was no joint defense agreement between the Chapter 7 trustee for AMS and Gonzalez at the time the statement was made. "[C]ase law has 'expanded the scope of [the litigation privilege] to include publication to nonparties with a substantial interest in the proceeding.' " (GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 152.) Here, Zuberi had a substantial interest in the civil harassment action as counsel for the Chapter 7 trustee for the bankruptcy estate of AMS. Gonzalez was the principal of AMS, and a joint insured with AMS under the insurance policy applicable to the medical malpractice claims. As such, Gonzalez and the trustee had a common interest in defending the medical malpractice action and Zuberi, as counsel for the trustee, had a substantial interest in ancillary litigation between Gonzalez and LaPierre. We therefore conclude that the statements to Zuberi were logically related to bankruptcy proceedings and protected by the litigation privilege.
For all of these reasons, we conclude that LaPierre failed to meet her burden of showing a probability of prevailing on the merits of her defamation cause of action.
2. Abuse of Process
"The common law tort of abuse of process arises when one uses the court's process for a purpose other than that for which the process was designed. [Citations.]" (Rusheen v. Cohen, supra, 37 Cal.4th at pp. 1056-1057.) "To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings. [Citation.]" (Id. at p. 1057.)
The complaint alleges that defendants misused the judicial process by making false statements in declarations and pleadings in the civil harassment and medical malpractice actions, and falsifying unspecified documents. The trial court found that LaPierre failed to demonstrate a probability of prevailing on her abuse of process claim because she failed to make a sufficient showing that defendants acted with an ulterior motive or committed an improper willful act. On appeal, LaPierre renews her contention that defendants submitted false declarations and pleadings in the civil harassment and medical malpractice actions. We need not linger over this contention, as we conclude that the activities alleged to constitute the abuse of process cause of action are protected by the litigation privilege.
The "[p]leadings and process in a case are generally viewed as privileged communications." (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 770.) The privilege extends to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, and applies even in the context of an abuse of process claim predicated upon allegations that a party filed a false or perjured declaration (Pollack v. University of Southern California (2003) 112 Cal.App.4th 1416, 1431), interposed a defensive pleading in bad faith (California Physicians' Service v. Superior Court (1992) 9 Cal.App.4th 1321, 1330) or presented falsified documents (Steiner v. Eikerling (1986) 181 Cal.App.3d 639, 642-643). In light of these authorities, we conclude that the litigation privilege operates as a complete defense to the abuse of process claim.
LaPierre expends considerable energy enumerating and debunking the false statements alleged to have been made in various declarations. We need not unpack these arguments as the allegedly perjurious declarations are protected by the litigation privilege. (Pollack v. University of Southern California, supra, 112 Cal.App.4th at p. 1431.)
3. Malicious Prosecution
To establish a cause of action for malicious prosecution, "[t]he underlying action must have been: (i) initiated or maintained by, or at the direction of, the defendant, and pursued to a legal termination in favor of the malicious prosecution plaintiff; (ii) initiated or maintained without probable cause; and (iii) initiated or maintained with malice." (Parrish v. Latham & Watkins (2017) 3 Cal.5th 767, 775.) The trial court found that LaPierre failed to demonstrate a probability of prevailing on her malicious prosecution claim because she failed to make a sufficient showing of malice. LaPierre responds that malice can be inferred from defendants' failure to investigate and lack of probable cause to file the civil harassment petition. We need not reach this argument, as we conclude that LaPierre cannot prevail on her malicious prosecution claim as a matter of law.
In Siam the Court of Appeal for the Sixth Appellate District held that "the unsuccessful filing of a petition for an injunction under section 527.6 may not form the basis for a malicious prosecution action." (Siam, supra, 130 Cal.App.4th at p. 1574.) The court explained: "Section 527.6 is used where the victim has been stalked, threatened or otherwise seriously harassed. [Citation.] There are many cases that exemplify the bitter and even irrational disputes that arise under section 527.6. [Citations.] In such highly charged circumstances a successful defendant may be inclined to counter with a civil action against the unsuccessful plaintiff. Yet, as in family law disputes, the background of bitterness would make it difficult to distinguish between a malicious petition and one that is not malicious." (Id. at pp. 1572-1573.)
The court went on to observe that "a section 527.6 petition is not an ordinary civil action. [Citation.] The statute provides for an action to be completed in a matter of weeks and incorporates an expectation that victims may often seek relief without the benefit of a lawyer. [Citations.] Permitting a malicious prosecution claim to follow an unsuccessful section 527.6 petition would frustrate this streamlined procedure. The prudent plaintiff would seek legal advice before filing a petition. The risk of subsequent litigation might dissuade victims of serious harassment from seeking the remedy. Those that were not discouraged would be subject to the possibility of serious financial harm in the future." (Siam, supra, 130 Cal.App.4th at p. 1573.) "On balance," the court concluded, "these concerns outweigh the concern that an aggrieved defendant might be deprived of the additional remedies a malicious prosecution action would provide in egregious situations." (Ibid.)
The Court of Appeal for the Second District, Division 5, adopted the reasoning of Siam in Kenne, and similarly concluded that a civil harassment petition under section 527.6 cannot, for reasons of public policy, form the basis for a malicious prosecution cause of action. (Kenne, supra, 230 Cal.App.4th at p. 970.)
LaPierre notes that Siam was a family law case, while the present case is not. That may be so, but LaPierre fails to explain why that should make any difference, particularly in view of Kenne, which had its origins in a civil dispute between nonfamily members. (Kenne, supra, 230 Cal.App. at p. 957.) We decline LaPierre's invitation to disagree with Siam and Kenne. Following those authorities, we conclude the civil harassment petition cannot serve as the basis for a malicious prosecution claim, and therefore, LaPierre failed to demonstrate a probability of prevailing.
III. DISPOSITION
The judgment of dismissal in favor of Gonzalez is amended to include LMBS, and affirmed. Costs are awarded to Gonzalez and LMBS. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/S/_________
RENNER, J. We concur: /S/_________
HULL, Acting P. J. /S/_________
DUARTE, J.