SLAPPback statute only exempts malicious prosecution action from anti-SLAPP statute when underlying action was dismissed as SLAPP suit because it was illegal as matter of law

In Soukup v. Law Offices of Herbert Hafif, (2006) 39 C.4th 260, 46 C.R.3d 638, 139 P.3d 30, plaintiff brought an action against her former employer and his counsel for malicious prosecution and abuse of process after defendants’ action against plaintiff was dismissed under the anti-SLAPP statute, C.C.P. 425.16. Defendants moved to strike plaintiff’s action as a SLAPP suit. The trial court denied defendants’ motions on the ground that the anti-SLAPP statute did not apply here. The Court of Appeal reversed. Held, reversed. Defendants are not barred from using the anti-SLAPP statute in an attempt to strike plaintiff’s action, but plaintiff has demonstrated a probability of prevailing on her malicious prosecution claim so as to defeat defendants’ motions.

(a) The SLAPPback statute, C.C.P. 425.18, applies to cases, like this one, that were pending when the statute was enacted. (39 C.4th 280, 281.) It provides special treatment for actions “for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike” under C.C.P. 425.16. (39 C.4th 281.) C.C.P. 425.18(h) exempts from the anti-SLAPP statute a malicious prosecution action brought after the underlying action was dismissed as a SLAPP suit when the dismissal was based on the illegality of the action “as a matter of law.” (39 C.4th 283.)

(b) The Legislature did not create a categorical exemption of all SLAPPbacks from the anti-SLAPP statute. (39 C.4th 283.) Instead, the underlying action must have been dismissed because it was illegal, or “forbidden by law,” and that illegality must be established “as a matter of law.” (39 C.4th 283, 284.) The illegality “must be established as a matter of law either through the defendant’s concession or because the illegality is conclusively established by the evidence presented in connection with the motion to strike.” (39 C.4th 285.) The plaintiff shoulders this burden and must “identify with particularity the statute or statutes violated by the filing and maintenance of the underlying action.” (39 C.4th 287.) The plaintiff must also show the "specific manner in which the statute or statutes were violated with reference to their elements.” (39 C.4th 287.)

(c) Here, plaintiff failed to carry her burden of showing that defendants’ initiation and maintenance of the underlying action violated Lab.C. 1102.5(b) and 29 U.S.C., §1140. Plaintiff complained to the Department of Labor about defendant’s pension plan and alleges retaliatory action in violation of these statutes. A prerequisite to asserting a violation is the existence of an employer/employee relationship at the time that the allegedly retaliatory action occurred. But plaintiff was not an employee at the time she complained to the Department of Labor nor when the underlying action was filed. (39 C.4th 287, 288.)

(d) Because plaintiff failed to show that the underlying action was illegal as a matter of law for purposes of C.C.P. 425.18(h), defendants are not barred from proceeding with their motions to strike plaintiff’s action under the anti-SLAPP statute. However, after defendants fulfilled their required threshold showing that filing the underlying action was protected First Amendment activity, plaintiff then had the right, under the anti-SLAPP statute, to demonstrate a probability of prevailing on her malicious prosecution claim. (39 C.4th 2290, 291.) To establish a probability of prevailing, plaintiff only needed to show that defendants lacked probable cause to file any one of the four causes of action against her in the underlying action. In defendants’ malicious prosecution claim against plaintiff, she demonstrated defendants’ lack of probable cause by evidence showing that she did not initiate any of the lawsuits against defendant “that were the basis of that claim; that she had minimal or no contact with any of her codefendants in the time period during which those actions were filed;” and that defendant “conceded at his deposition that he would not be producing any witnesses to testify that she assisted her codefendants in filing their complaints.” (39 C.4th 293.)

(e) The fact that the underlying action was dismissed as a SLAPP suit did not establish a prima facie showing of malice. However, plaintiff satisfied the requirement of showing minimal merit to her malicious prosecution claim, so as to defeat defendants’ motions, by evidence ranging from open hostility towards her to indifference regarding her plight in having to defend herself in the underlying action. Further, “malice can also be inferred from the evidence that defendants lacked probable cause to initiate and maintain the underlying action” against plaintiff. (39 C.4th 295, 296.)

Witkin References:

On anti-SLAPP suits generally, see 5 Cal. Proc. (4th), Pleading, §962 et seq.

On motion to strike SLAPPback cause of action, see 5 Cal. Proc. (4th), Pleading, Supp., §964A.