Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County. Super. Ct. No. BC325079, Haley J. Fromholz, Judge.
Goe & Forsythe and Marc C. Forsythe for Plaintiff and Appellant.
Nass Law Firm and Edmond Nassirzadeh for Defendants and Respondents Ira Forest and Edmond Nassirzadeh.
Parker, Milliken, Clark, O’Hara & Samuelian and William E. Weinberger for Defendants and Respondents Edward Scharf and Gregory M. Salvato.
COOPER, P. J.
Appellant sued respondents, who filed a successful anti-SLAPP motion. This appeal is from the order to strike and the award of attorney fees. We shall affirm both orders and remand for the trial court to consider a further award of attorneys fees on appeal to respondents.
Respondents Edward Scharf and Gregory Salvato filed the motion. Respondents Ira Forest and Edmond Nassirzadeh filed a joinder in that motion.
Appellant’s complaint, filed in pro per, was for malicious prosecution, abuse of process, and intentional infliction of emotional distress. The basis of the instant lawsuit is that Scharf and Salvato encouraged attorney Nassirzadeh and his client Forest to “maliciously file” three lawsuits against appellant in order to intimidate and threaten appellant from pursuing enforcement of his judgment rights in the United States Bankruptcy Court.
Appellant alleged he secured a large Bankruptcy Court judgment against respondents in 1999 and, in an alleged effort to stymie collection of that judgment, respondents sued appellant three (or possibly four) times in state court. The instant complaint is appellant’s response to the three lawsuits, which he claims were all filed maliciously, without probable cause, terminated in his favor, and caused him serious emotional distress.
Appellant alleged that a demurrer was sustained in the third lawsuit, which was dismissed for lack of jurisdiction, and that respondents thereafter filed a first amended complaint, which appellant characterized as the fourth lawsuit. There is no indication of a termination, much less a favorable termination of that first amended complaint.
Respondents’ motion pursuant to Code of Civil Procedure section 425.16 argued that the instant lawsuit by appellant is a SLAPP suit. The trial court agreed and granted the motion. In addition to finding that appellant’s opposition to the motion was untimely filed and could be disregarded, precluding appellant from meeting his burden of showing a likelihood of prevailing on his claims, the court concluded the result “would be the same even if it were considered.”
Subsequently, the court awarded attorney fees to respondents. Appellant appealed separately from both the order striking his complaint and the award of attorney fees. The appeals have been consolidated.
DISCUSSION
1. SLAPP and standard of review.
Our Supreme Court in Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056 [extending the litigation privilege to postjudgment enforcement activities that are necessarily related to the allegedly wrongful communicative act is consistent with public policy considerations], has recently summarized the applicable law regarding SLAPP lawsuits: “A SLAPP suit--a strategic lawsuit against public participation--seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1, [81 Cal.Rptr.2d 471, 969 P.2d 564].) The Legislature enacted Code of Civil Procedure section 425.16--known as the anti-SLAPP statute--to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 865 44 Cal.Rptr.2d 46.)
“In evaluating an anti-SLAPP motion, the trial court first determines whether the defendant has made a threshold showing that the challenged cause of action arises from protected activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 [124 Cal.Rptr.2d 507, 52 P.3d 685].) Under Code of Civil Procedure section 425.16 ‘[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech . . . shall be subject to a special motion to strike. . . . ’ (Code Civ. Proc., § 425.16, subd. (b)(1).) ‘A cause of action “arising from” defendant’s litigation activity may appropriately be the subject of a section 425.16 motion to strike.’ (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 648 [49 Cal.Rptr.2d 620], disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) ‘Any act’ includes communicative conduct such as the filing, funding, and prosecution of a civil action. (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 17-19 [43 Cal.Rptr.2d 350].) This includes qualifying acts committed by attorneys in representing clients in litigation. (See, e.g., Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1086 [114 Cal.Rptr.2d 825]; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1418-1420 [103 Cal.Rptr.2d 174].)
“If the court finds the defendant has made the threshold showing, it determines then whether the plaintiff has demonstrated a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) ‘In order to establish a probability of prevailing on the claim (Code Civ. Proc., § 425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must “‘state[ ] and substantiate[ ] a legally sufficient claim.’” [Citations.] Put another way, 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.]’ (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [123 Cal.Rptr.2d 19, 50 P.3d 733].)” (Accord City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 70-71; Holbrook v. City of Santa Monica (2006) 144 Cal.App.4th 1242.)
Moreover, our review of the trial court’s decision is de novo. (Visher v. City of Malibu (2005) 126 Cal.App.4th 364, 368.)
2. Respondents have made the necessary threshold showing.
Appellant initially claims that the joinder papers filed by respondents Forest and Nassirzadeh were insufficient to constitute a valid anti-SLAPP motion. (See Decker v. The U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1391; Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26 [notice of joinder not adequate to support summary judgment].) Relying on Barak v. The Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660-662 [joinder in 425.16 motion is appropriate], we conclude that, assuming appellant raised the issue in the trial court, the trial court did not abuse its discretion in allowing joinder and additionally there was no prejudice to appellant.
The authority cited by appellant is distinguishable. In Decker v. The U.D. Registry, Inc., supra, 105 Cal.App.4th 1382, 1391, a defendant who “joined” other defendant’s untimely and unsuccessful special motion to strike without providing evidence or argument was held to be “not bound--for better or for worse--by the order denying [codefendant’s] motions”; in addition, his appeal was dismissed for lack of standing. In Village Nurseries v. Greenbaum, supra, 101 Cal.App.4th 26, 46, summary judgment awarded an individual defendant who never filed a motion for summary judgment in his favor or a separate statement in support of such a motion but only “served notices that he intended to join” in the other defendants’ motions for summary judgment was reversed, the court concluding he did not file the required motion pursuant to Code of Civil Procedure section 437c.)
Respondents have made the threshold showing that the challenged causes of action arise from their protected activity in filing or encouraging the filing of lawsuits. Indeed, respondents’ filing of lawsuits is exactly the type of conduct section 425.16 is meant to address. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 648; Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 17-19, 43 Cal.Rptr.2d 350.) The acts of persons filing the lawsuits as well as the attorneys representing them in civil litigation constitute protected activity. (See, e.g., Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1086; Dowling v. Zimmerman(2001) 85 Cal.App.4th 1400, 1418-1420.)
Once respondents have demonstrated that the causes of action arise from protected activity, the court then determines whether appellant has demonstrated a probability of prevailing on the claim. “An anti-SLAPP motion must be denied ‘“if the plaintiff presents evidence establishing a prima facie case which, if believed by the trier of fact, will result in a judgment for the plaintiff. [Citation.]”’ (Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 356 [125 Cal.Rptr.2d 383].) Only a minimal showing of merit is required. (Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298 [126 Cal.Rptr.2d 516].)” (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1421.)
“‘The burden on the plaintiff is similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment. [Citation.]’” (Marijanovic v. Gray, York & Duffy (2006) 137 Cal.App.4th 1262, 1270.) As explained in Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, the plaintiff must demonstrate not only that the complaint is legally sufficient but that plaintiff’s cause of action is supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. Respondents claim that appellant has not sustained his burden. As we now explain, he has not.
3. Appellant did not demonstrate a probability of prevailing.
a. The litigation privilege applies to all but the malicious prosecution cause of action.
There is a strong public policy interest in allowing publications in the course of judicial proceedings. To that end, Civil Code section 47, as it relates to lawsuits, creates a largely absolute privilege. Section 47 was originally enacted with reference to defamation, but has been held to have “broad application” to torts other than malicious prosecution. (Silberg v. Anderson (1990) 50 Cal.3d 205, 211; Abraham v. Lancaster Community Hospital (1990) 217 Cal.App.3d 796 [summarizing authority and legislative history].)
Civil Code section 47 provides: “A privileged publication or broadcast is one made: [¶] (a) In the proper discharge of an official duty. [¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows:(1) [¶] An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action. [¶] (2) This subdivision does not make privileged any communication made in furtherance of an act of intentional destruction or alteration of physical evidence undertaken for the purpose of depriving a party to litigation of the use of that evidence, whether or not the content of the communication is the subject of a subsequent publication or broadcast which is privileged pursuant to this section. As used in this paragraph, “physical evidence” means evidence specified in Section 250 of the Evidence Code or evidence that is property of any type specified in Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4 of the Code of Civil Procedure. [¶] (3) This subdivision does not make privileged any communication made in a judicial proceeding knowingly concealing the existence of an insurance policy or policies. [¶] (4) A recorded lis pendens is not a privileged publication unless it identifies an action previously filed with a court of competent jurisdiction which affects the title or right of possession of real property, as authorized or required by law. (c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision authorizes a current or former employer, or the employer’s agent, to answer whether or not the employer would rehire a current or former employee. This subdivision shall not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law. [¶] (d)(1) By a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued. [¶] (2) Nothing in paragraph (1) shall make privileged any communication to a public journal that does any of the following: [¶] (A) Violates Rule 5-120 of the State Bar Rules of Professional Conduct. [¶] (B) Breaches a court order. [¶] (C) Violates any requirement of confidentiality imposed by law. [¶] (e) By a fair and true report of (1) the proceedings of a public meeting, if the meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.”
Our Supreme Court in Rusheen v. Cohen, supra, 37 Cal.4th 1048, 1057, set forth the general parameters of the litigation privilege, stating it “‘applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved. [Citations.] [¶] 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. [Citations.]’ (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [266 Cal.Rptr. 638, 786 P.2d 365] (Silberg).) Thus, ‘communications with “some relation” to judicial proceedings’ are ‘absolutely immune from tort liability’ by the litigation privilege (Rubin v. Green (1993) 4 Cal.4th 1187, 1193 [17 Cal.Rptr.2d 828, 847 P.2d 1044] (Rubin)). It is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards. (5 Witkin, Summary of Cal. Law [(9th ed. 1988)] Torts, §§ 470, 505, pp. 554, 591.)”
We note that the Legislature has added exceptions to the absolute privilege in section 47 in a very narrow range of cases, not including the underlying lawsuits in the case at bench.
With the exception of appellant’s cause of action for malicious prosecution, his other causes of action are barred by the litigation privilege, a defense appellant does not even address in his opening brief. Thus, he has no probability of success on those causes of action and the anti-SLAPP motion was properly granted as to his causes of action for abuse of process and intentional infliction of emotional distress.
This court permitted the late filing of appellant’s reply briefs. Appellant does discuss the application of the litigation privilege in his brief in reply to the Scharf/Salvato respondents’ brief. Even if we consider his arguments, they are premised in large part of case law that has since been overturned by our Supreme Court’s interpretation of the litigation privilege in Silberg v. Anderson, supra, 50 Cal.3d 205, and later cases. This court does not look favorably on the tactic of not discussing an obvious issue in the opening brief and then arguing it in detail for the first time in the reply brief.
b. The malicious prosecution cause of action.
In Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741, our Supreme Court declined “to create a categorical exemption from the anti-SLAPP statute for malicious prosecution causes of action.”
“To establish a cause of action for malicious prosecution, the plaintiff must prove the prior action was: (1) brought by the defendant and resulted in a favorable termination for the plaintiff; (2) initiated or continued without probable cause; and (3) initiated with malice. [Citation].” Robinzine v. Vicory, supra, 143 Cal.App.4th 1416, 1422; accord Siebel v. Mittlesteadt (2007) ___ Cal.4th ___ [2007 WL 2027804].) Respondents contend that appellant has not demonstrated any of the three elements, all of which are required in order to prevail in a malicious prosecution action.
The trial court determined inter alia that there was no termination on the merits in that the first two actions were voluntarily dismissed as premature and, as to the third complaint, the court had sustained a demurrer for lack of subject matter jurisdiction. (See Eells v. Rosenblum (1995) 36 Cal.App.4th 1848.) In addition, the court concluded appellant offered no evidence that respondents lacked probable cause or that they initiated the proceedings with malice.
We also conclude there was no favorable termination and therefore need not decide if the other elements of the malicious prosecution cause of action have been established. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 [setting forth elements of lack of “probable cause” for malicious prosecution purposes].) According to appellant’s own complaint, the first two lawsuits brought by respondents were premature and were voluntarily dismissed; the third was allegedly also premature and was dismissed following the sustaining of a demurrer for lack of jurisdiction. As we now explain, these reasons for dismissal are not “on the merits” and therefore the dismissals do not constitute a “favorable termination” for the purposes of appellant’s malicious prosecution cause of action. He thus has no probability of prevailing and the anti-SLAPP motion was properly granted.
In his reply brief, appellant contends that respondents and the court took the words of his complaint out of context and that the dismissals of each of the complaints was for lack of merit and constitute decisions on the merits. We read the complaint as the trial court did.
“‘[I]n order for the termination of a lawsuit to be considered favorable to the malicious prosecution plaintiff, the termination must reflect the merits of the action and the plaintiff’s innocence of the misconduct alleged in the lawsuit.” (Pender v. Radin (1994) 23 Cal.App.4th 1807, 1814 [29 Cal.Rptr.2d 36].) For example, a termination is favorable for malicious prosecution purposes where the court in the underlying action: (1) granted summary judgment and issued sanctions because the claim was meritless (Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1191 [121 Cal.Rptr.2d 794]); (2) granted summary judgment because there was insufficient evidence to establish a triable issue of fact [citation]; or (3) held that the defendant, as a matter of law, violated no duty to the plaintiff (Ray v. First Federal Bank (1998) 61 Cal.App.4th 315, 318 [71 Cal.Rptr.2d 436] (Ray)).” (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 341-342; see Siebel v. Mittlesteadt, supra, ___ Cal.4th ___ [2007 WL 2027804].)
“‘The key is whether the termination reflects on the underlying defendant’s innocence. [Citations.] If the resolution of the underlying litigation “leaves some doubt as to the defendant’s innocence or liability[, it] is not a favorable termination, and bars that party from bringing a malicious prosecution action against the underlying plaintiff.”’ (Eells v. Rosenblum, [supra, ] 36 Cal.App.4th 1848, 1855, 43 Cal.Rptr.2d 323 (Eells), alteration and italics in original.) Favorable termination ‘is an essential element of the tort of malicious prosecution, and it is strictly enforced.’ [Citation.])” (StaffPro, Inc. v. Elite Show Services, Inc. (2006) 136 Cal.App.4th 1392, 1399-1400, fn. omitted.)
Although other jurisdictions vary regarding the question (see Annot., Nature of Termination of Civil Action Required to Satisfy Element of Favorable Termination to Support Action for Malicious Prosecution (1984 and supps.) 30 A.L.R.4th 572), California courts have concluded lack of jurisdiction is procedural and is not a ruling on the merits. A “dismissal, say, for lack of jurisdiction (see Ferraris v. Levy, [(1963)] 223 Cal.App.2d 408, 411 [36 Cal.Rptr. 30]) not only is not on the merits, it is unreflective of the merits; neither the judgment of the court nor that of the prosecuting party on the merits is implicated in the dismissal.” (Minasian v. Sapse (1978) 80 Cal.App.3d 823, 827; accord Hudis v. Crawford (2005) 125 Cal.App.4th 1586, 1592 [stating in dictum that a dismissal for lack of jurisdiction does not involve the merits and cannot constitute a favorable termination]; Lackner v. LaCroix (1979) 25 Cal.3d 747, 751 [“Termination of an action by a statute of limitations defense must be deemed a technical or procedural as distinguished from a substantive termination. Like other procedural defenses - i.e., lack of personal jurisdiction or failure to comply with the statute of frauds - the limitations defense is waived unless timely raised”], italics added, distinguished on other grounds in Casa Herrera, Inc. v. Beydoun, supra, 32 Cal.4th 336, 343 [“a termination based on the parol evidence rule is a substantive termination in the malicious prosecution context”].) The case at bench is unlike Jaffe v. Stone (1941) 18 Cal.2d 146, 150-151 [in criminal context “the accuser or the prosecuting officers may abandon the proceeding because of the defects in the complaint, or doubts as to the jurisdiction of the offense . . . . [In such circumstances, ] the dismissal cannot be regarded as a favorable termination in favor of the accused”] or Padres L.P. v. Henderson (2003) 114 Cal.App.4th 495, 516 [“although the bases for this court’s holdings were procedural rather than substantive, the trial court made a substantive determination that the [underlying] claims were without merit. Its determination was sufficient to constitute a ‘favorable termination’ as needed to support a claim for malicious prosecution”].
Jaffe v. Stone, supra, 18 Cal.2d 146, 151-152, holds that failure to produce a case against the criminal defendant before the magistrate is a favorable termination.
Appellant, who has the burden on this issue, has not demonstrated that the dismissals in the underlying lawsuits were terminations on the merits.
In his reply brief, appellant claims that if there was lack of jurisdiction as to the earlier complaints, then this trial court also had no subject matter over the appellant’s malicious prosecution complaint and “should have dismissed it for lack of jurisdiction or referred it to the Nevada Bankruptcy Court.” Appellant’s argument that his own complaint should be dismissal is peculiar; but a court may lack jurisdiction at one point in time and acquire it at another, for example, at the expiration of an automatic stay issued by a bankruptcy court.
4. Attorney fees
The trial court awarded respondents Scharf and Salvato attorney fees of $35,845.50 and costs of $1,990.75. Pursuant to section 425.16, subdivision (c), a successful moving party “shall be entitled to attorney’s fees and costs.” (Italics added; see, e.g., Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 686.) We review an award of attorney fees to see if the award was an abuse of the trial court’s discretion. (Foundation for Taxpayer and Consumer Rights v. Garamendi, supra, 132 Cal.App.4th 1375, 1388.) There was no abuse of discretion in the case at bench.
The cases cited by appellant involve a decision favorable to plaintiff, where the award of attorney fees is not mandatory unless “the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay . . . .” (Foundation for Taxpayer and Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1387-1388.) Defendants prevailed in the case at bench; the law cited by appellant is inapplicable.
Respondents shall recover costs on appeal. As in Barak v. Quisenberry Law Firm, supra, 135 Cal.App.4th 654, 662, we shall remand the matter to the trial court to consider a further award of attorney fees on appeal to respondents.
DISPOSITION
The orders striking the complaint and awarding attorney fees and costs are affirmed. Costs on appeal are awarded to respondents and the matter is remanded to the trial court to consider a further award of attorney fees on appeal to respondents.
We concur: RUBIN, J., BOLAND, J.
Moreover, as determined by the trial court, appellant offered no evidence regarding the content of those communications, documents attached to the three underlying complaints concerning criminal proceedings against appellant. Without such evidence, the litigation privilege would apply to documents attached to a complaint.