229 Cal. App. 4th 1466
Cal. Ct. App.2014Background
- Zucchet sued Galardi for malicious prosecution based on Galardi’s alleged false statements to federal authorities and testimony at Zucchet’s criminal trial regarding a $10,000 payment.
- Galardi moved to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16), arguing his statements and testimony were protected activity.
- The underlying conduct relates to a federal prosecution of Zucchet and others for schemes to repeal San Diego’s no-touch ordinance governing strip clubs.
- The district court denied acquittal on two counts but granted a new trial; the Ninth Circuit largely agreed with lower court reasoning against Zucchet.
- The trial court denied the anti-SLAPP motion; on appeal, the Fourth District reversed and remanded with directions to grant the motion to strike.
- The appellate court concluded Galardi’s statements were protected, and Zucchet failed to show a probability of prevailing on the merits because Galardi was not an actively instrumental provocateur.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the malicious prosecution claim arise from protected anti-SLAPP activity? | Zucchet contends Galardi’s statements to prosecutors and trial testimony are protected | Galardi argues the acts are protected as speech/petitioning in a legal proceeding | Yes; protected activity established |
| Did Galardi’s conduct amount to active participation causing the prosecution? | Galardi actively fueled continuation by introducing the $10,000 claim and pressuring prosecutors | Galardi was a trial witness in an ongoing case and did not urge further prosecution | No; not active participation as required |
| Does the illegal activity exception to anti-SLAPP apply to bar protection? | Statements were illegal, so protection should be denied | No conclusive evidence Galardi’s statements were false; exception not established | No; illegal conduct not conclusively established as matter of law |
Key Cases Cited
- Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811 (2011) (two-prong anti-SLAPP framework and threshold protection)
- Flatley v. Mauro, 39 Cal.4th 299 (2006) (illegal activity exception is narrow and rarely applied)
- Jarrow Formulas, Inc. v. LaMarche, 31 Cal.4th 728 (2003) (anti-SLAPP applies to malicious prosecution; broad scope)
- Dickens v. Provident Life & Accident Ins. Co., 117 Cal.App.4th 705 (2004) (testimony and communications in investigations can be protected)
- Greka Integrated, Inc. v. Lowrey, 133 Cal.App.4th 1572 (2005) (disclosure to authorities in anti-SLAPP context)
- Cedars-Sinai Medical Center v. Superior Court, 206 Cal.App.3d 414 (1988) (protective scope of statements in ongoing investigations; not liable as malicious prosecution)
- Zamos v. Stroud, 32 Cal.4th 958 (2004) (Restatement guidance on active participation in continuation of proceedings)
- Cross v. Cooper, 197 Cal.App.4th 357 (2011) (illegality exception in anti-SLAPP analysis; unresolved factual disputes)
- Sullivan v. County of Los Angeles, 12 Cal.3d 710 (1974) (private party liability for malicious prosecution; active involvement standard)
- DuPont Merck Pharmaceutical Co. v. Superior Court, 78 Cal.App.4th 562 (2000) (evidence weighing in anti-SLAPP second prong)