Opinion
INTRODUCTION
Defendant and appellant Morse Mehrban (Mehrban) appeals from the trial court’s order denying his special motion to strike filed under the anti-SLAPP (strategic lawsuit against public participation) statute, Code of Civil Procedure section 425.16.
BACKGROUND
A. Garcia’s 2008 Lawsuit
In 2008, Alfredo Garcia filed a complaint against JSJ asserting one cause of action entitled “Violation of Civil Code sections 54 and 54.1” (2008
B. Garcia’s 2009 Lawsuit
In 2009, Garcia, with Mehrban as his counsel, filed a second complaint against JSJ (2009 Lawsuit). In that case, Garcia alleged two causes of action, entitled “Violation of Civil Code Section 51” and “Violation of Civil Code Sections 54 and 54.1,” respectively. Garcia again alleged that JSJ was the owner of a parcel of real property on which a restaurant parking lot was located and Garcia “could not walk and was wheel-chair bound.” In this complaint, Garcia alleged that “during the preceding year, [JSJ] failed and refused ... to provide [him] ... a designated van-accessible handicap parking spot with a 96-inch-wide access aisle . . . ,” and “[Garcia] would have patronized said facility on at least 4 occasions during that period but for the fact that he knew he would be denied full and equal access to the parking lot.” Garcia sought “$16,000 in damages, permanent injunctive relief, attorney’s fees, [and] costs . . . .”
The trial court sustained JSJ’s demurrer to the complaint on the ground that the doctrine of res judicata barred Garcia’s claim and granted Garcia 10 days’ leave to amend the complaint, stating, “[Garcia] acknowledges that both [the 2008 Lawsuit and the 2009 Lawsuit] assert violations of the ADA [(Americans with Disabilities Act of 1990; 42 U.S.C. § 12101 et seq.)] based on architectural barriers. . . . [Garcia’s] argument that the difference between the architectural barriers (inability to use the restroom versus inability to use the parking lot) bars the application of res judicata has no merit.... Nor can [Garcia] elude the effect of res judicata by arguing that res judicata ‘is not a bar to claims that arise after the initial complaint is filed.’ In his opposition [Garcia] asserts that his attempts to use the parking lot occurred in September 2008, after the visits he made in January and February 2008 when he was unable to use the bathroom. However, nowhere in the complaint does [Garcia] allege the date or dates on which he attempted to visit the restaurant;
C. This Action
In 2011, JSJ filed a verified complaint against Mehrban
In its claim for malicious prosecution, JSJ alleged that Mehrban knew or should have known the complaint in the 2009 Lawsuit had no merit, Mehrban caused the complaint to be filed without probable cause, and the complaint was filed for “retribution and ... to require [JSJ] to spend his [sz'c] money unnecessarily.” In its claim for abuse of process, JSJ alleged that Mehrban and Garcia “claimed [in the 2009 Lawsuit] they could not patronize JSJ’s restaurant, even though a few weeks before they were testifying in the [2008 Lawsuit] that they entered and patronized the restaurant, [f] [Mehrban and Garcia] filed a voluntary dismissal that was in response to the Court’s ruling on the Demurrer and written statement that the subject Complaint was a sham pleading. [(j[] [Mehrban and Garcia] acted without probable cause in initiating the prosecution of the [2009 Lawsuit], in that they did not honestly, reasonable, [sic] and in good faith believe JSJ to be liable therein because they knew that GARCIA had not even gone to the restaurant and was simply filing
Mehrban filed a special motion to strike the lawsuit under section 425.16 (anti-SLAPP motion), contending that the complaint he filed on behalf of Garcia arose from a protected activity. He maintained that JSJ could not show a probability of prevailing on its abuse of process claim because the complaint in the 2009 Lawsuit was privileged under the litigation privilege doctrine. Mehrban argued that JSJ could not show a probability of prevailing on its malicious prosecution claim because (1) the 2009 Lawsuit was not terminated in JSJ’s favor on the merits; (2) the complaint in the 2009 Lawsuit was instituted by Mehrban with probable cause in that the lawsuit was not barred by the doctrine of res judicata, it was not a “sham,” and the facts alleged had been transmitted to Mehrban by Garcia and verified by Garcia under penalty of perjury; and (3) Mehrban did not institute the 2009 Lawsuit with malice. In support of Mehrban’s anti-SLAPP motion, Garcia declared that because there were problems arranging for legal representation for an appeal, he decided voluntarily to dismiss the 2009 Lawsuit. He also recited the facts underlying his claim. Mehrban confirmed that Garcia had told him of those facts before he filed the action and that he was unable at the time to handle the appeal.
JSJ opposed the motion, contending that its complaint did not arise from a protected activity for purposes of section 425.16, and that it could establish a probability of prevailing on its claims. JSJ’s managing partner stated that JSJ had been in compliance with the ADA (Americans with Disabilities Act of 1990). JSJ submitted additional material that reflected adversely on Garcia, and Mehrban filed a responsive declaration by Garcia. The trial court, after ruling on evidentiary objections, denied the anti-SLAPP motion, but did not state its rationale for doing so.
DISCUSSION
A. Appealability and Standard of Review
An order granting a special motion to strike under section 425.16 is directly appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).) We review de novo the trial court’s order denying an anti-SLAPP motion. (Flatley v. Mauro (2006)
B. Legal Principles
“ ‘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. [Citation.] 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. [Citation.]’ (Rusheen v. Cohen (2006)
Section 425.16 provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) In considering the application of the anti-SLAPP statute, courts engage in a two-step process. “ ‘First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. ... If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.’ [Citation.]” (Taus v. Loftus (2007)
C. Protected Activity
Mehrban contends that he met his burden of proving JSJ’s claims arise from protected activity. JSJ disagrees, contending that its complaint “is not attempting to ‘stop’ a citizen’s right to bring a claim under the American’s with Disabilities Act.... JSJ file[d] [the] lawsuit because JSJ knows it to be a fact that the disabled parking access has been in existence since 1997 .... Therefore, it would have been impossible for GARCIA to truthfully state in his 2009 LAWSUIT that there was no parking access for the disabled as alleged in the 2009 Lawsuit.” JSJ further contends that Mehrban had reason to believe that Garcia fabricated the 2009 Lawsuit because prior lawsuits brought by Garcia were not meritorious, and that Garcia used money from the lawsuits to support himself.
The subjective intent of a party in filing a complaint is irrelevant in determining whether it falls within the ambit of section 425.16. “There simply is ‘nothing in the statute requiring the court to engage in an inquiry as to the plaintiff’s subjective motivations before it may determine [whether] the anti-SLAPP statute is applicable.’ (Damon v. Ocean Hills Journalism Club [(2000)] 85 Cal.App.4th [468,] 480 [
The complaint in the 2009 Lawsuit was a “written or oral statement or writing made before a . . . judicial proceeding . . . .” (§ 425.16, subd. (e)(1); see Contemporary Services Corp. v. Staff Pro Inc. (2007)
The complaint in this action was based on the filing of the 2009 Lawsuit. That complaint was filed against Mehrban “for contriving the [2009 Lawsuit] for retribution because JSJ prevailed in the [2008 Lawsuit].” The complaint arose from protected activity and is a proper subject of a motion made pursuant to the anti-SLAPP statute.
D. Probability of Prevailing on Merits
Mehrban contends that JSJ failed to meet its burden of demonstrating a likelihood it would prevail on the merits of its claims for abuse of process and malicious prosecution. We agree.
1. 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.” (Rusheen v. Cohen, supra,
JSJ’s claim for abuse of process is barred by the litigation privilege. (Civ. Code, § 47; Rohde v. Wolf, supra, 154 Cal.App.4th at pp. 37-38.) “The litigation privilege under section 47 is ‘ “an ‘absolute’ privilege, and it bars all tort causes of action except a claim of malicious prosecution.” [Citation.]’ (Flatleyl v. Mauro,] supra, 39 Cal.4th p. 322.) ...[][] The privilege in section 47 is ‘relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense plaintiff must overcome to demonstrate a probability of prevailing. [Citations.]’ [Citation.]” (Rohde v. Wolf, supra,
JSJ cites Booker v. Rountree (2007)
JSJ also contends that it filed its complaint because the 2009 Lawsuit was filed for an improper purpose—essentially to extort a settlement. “The relevant California authorities establish, however, that while a defendant’s act of improperly instituting or maintaining an action may, in an appropriate case, give rise to a cause of action for malicious prosecution, the mere filing or maintenance of a lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action. [Citations.]” (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986)
2. Malicious Prosecution
“ ‘[I]n order to establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff must demonstrate “that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].” ’ [Citation.]” (Casa Herrera, Inc. v. Beydoun (2004)
“ ‘The first element of a malicious prosecution cause of action is that the underlying case must have been terminated in favor of the malicious prosecution plaintiff. The basis of the favorable termination element is that the resolution of the underlying case must have tended to indicate the malicious prosecution plaintiff’s innocence. [Citations.] When prior proceedings are terminated by means other than a trial, the termination must reflect on the merits of the case and the malicious prosecution plaintiff’s innocence of the
Garcia voluntarily dismissed his 2009 Lawsuit after the trial court ruled that the doctrine of res judicata barred his claim. The dismissal of an action does not necessarily mean that there has been a favorable termination for purposes of a malicious prosecution action. As stated by the court in Robbins v. Blecher (1997)
JSJ contends, “The underlying reasons for termination of GARCIA’s 2009 Complaint [by voluntary dismissal] was that the Cause of Action was barred by Res Judicata.” Mehrban contends that the trial court erroneously ruled that the complaint in the 2009 Lawsuit was barred by res judicata. Mehrban says Garcia voluntarily dismissed the 2009 Lawsuit and never appealed the trial court’s order because Mehrban’s workload inhibited the pursuit of an appeal. The failure to appeal the order rendered it final and not reviewable. (Melbostad v. Fisher (2008)
Under the doctrine of res judicata, “a judgment for the defendant serves as a bar to further litigation of the same cause of action.” (Mycogen Corp. v. Monsanto Co. (2002)
If the trial court’s ruling that res judicata bars the 2009 Lawsuit is procedural rather than substantive, the voluntary dismissal would not be considered a favorable termination for purposes of malicious prosecution.
Whether a ruling that a claim barred by the doctrine of res judicata and dismissed based on that ruling results in a favorable termination for a malicious prosecution action is not an easy issue. It might seem that the disposal of a claim by the doctrine of preclusion has been favorably terminated. But so has one disposed of by the statute of limitations, a “technical” defense deemed not to be a favorable termination for malicious prosecution purposes. Moreover, in resolving this issue, we consider that “[t]he tort of malicious prosecution is disfavored . . . .” (Zamos v. Stroud (2004)
Favorable terminations for purposes of malicious prosecution and for res judicata are different. “[A] favorable termination is necessary as a reflection of the malicious prosecution plaintiff’s innocence in the prior proceeding. [Citation.] Res judicata and collateral estoppel on the other hand are not concerned with the actual merits of a prior adjudication but solely
Res judicata can be viewed as procedural in connection with malicious prosecution, for res judicata is not based on whether a party’s claim is actually meritorious. Rather, the doctrine is an affirmative defense, which as a matter of procedure, bars the claim—just as the statute of limitations does— whether the claim is meritorious or not. Just as the statute of limitations, res judicata can be waived if not asserted as an affirmative defense and proven. (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1127, p. 555; Code Civ. Proc., § 1908.5; Wolfsen v. Hathaway (1948)
JSJ alleged that Mehrban knew or should have known the complaint in the 2009 Lawsuit had no merit and notes that the trial court stated “the pleading appears to be a sham . . . .” In Warren v. Wasserman, Comden & Casselman (1990)
Accordingly, the successful invocation of the defense of res judicata in the underlying claim is not a determination on the merits for purposes of a malicious prosecution action. Thus, JSJ did not establish that Garcia’s voluntary dismissal following the res judicata ruling was on the merits in connection with its malicious prosecution claim.
As stated by the court in Warren v. Wasserman, Comden & Casseiman, supra,
Accordingly, Mehrban’s motion to dismiss pursuant to the anti-SLAPP statute should have been granted.
E. Other Contentions
Because we conclude there was not a favorable termination of the 2009 Lawsuit for purposes of malicious prosecution, we do not reach the issue of whether the doctrine of res judicata was properly applied, or whether the 2009 Lawsuit was filed without probable cause or initiated with malice. Similarly, we do not have to reach Mehrban’s claim of error in connection with evidentiary objections. Because we hold that the trial court erred in denying the anti-SLAPP motion, we deny JSJ’s request for attorney fees and costs on appeal. Mehrban is entitled to costs on appeal (§ 425.16, subd. (c)(1); Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 111, 785 [
The order denying the motion is reversed. Defendant Mehrban shall recover his costs on appeal. The matter is remanded to the trial court issue an order granting the motion to strike and to determine defendant Mehrban’s entitlement to an award of attorney fees.
Turner, P. J., and Armstrong, J., concurred.
Notes
All statutory citations are to the Code of Civil Procedure unless otherwise noted.
The complaint names as defendants, in part, Mehrban and Mehrban “dba LAW OFFICES OF [Mehrban].”
Garcia is not a party to this appeal.
Cases in other jurisdictions are not in harmony as to whether some of the various “technical” grounds constitute a favorable termination for a malicious prosecution action. (See Annot. (1984)
For example, a case dismissed with prejudice pursuant to a settlement agreement would be a bar for res judicata purposes, but not a favorable termination for malicious prosecution purposes. (See Jaress & Leong v. Burt (D. Hawaii 2001)