Metropolitan News-Enterprise


Wednesday, March 27, 2002


Page 1


Malicious Prosecution Suit Subject to Anti-SLAPP Motion, C.A. Rules


By KENNETH OFGANG, Staff Writer/Appellate Courts


A malicious prosecution suit may be the subject of a special motion to strike under the anti-SLAPP statute, this district’s Court of Appeal has ruled.

Div. Five late Monday reversed a Los Angeles Superior Court judge and ordered that a lawsuit against an attorney and his client be stricken and that the plaintiff pay attorney fees incurred in the trial and appellate courts.

The prevailing parties were Encino attorney Mark Brutzkus and his client, graphic artist and designer Sandra Hogan LaMarche.

The malicious prosecution suit grew out of a municipal court action in which Jarrow Formulas, Inc., a manufacturer of vitamins and supplements, sued LaMarche in connection with ownership of advertising artwork designed by LaMarche for Jarrow.

LaMarche, represented by Brutzkus, cross-complained, alleging interference by Jarrow with a proposed contract between LaMarche and Merical Distributors, Inc., a company that did business with Jarrow, for production of a promotional video.

The cross-complaint was rejected on summary adjudication. Jarrow’s claims against LaMarche went to a three-day bench trial resulting in a judgment for LaMarche.

Jarrow then sued LaMarche and Brutzkus for maliciously prosecuting the cross-complaint. It alleged there was never a pending agreement between LaMarche and Merical, and that LaMarche knew that Jarrow did nothing to injure its business relationships.

Jarrow also claimed that Brutzkus knew, based upon correspondence and negotiations in the lawsuit, that LaMarche lacked credibility and that there was no factual basis for the cross-complaint.

Brutzkus and LaMarche moved to strike the complaint under Code of Civil Procedure Sec. 425.16, the anti-SLAPP statute. The law provides that where a lawsuit impinges on First Amendment rights of free speech and petition, the defendant is entitled to have the suit stricken, and to recover attorney fees, unless the plaintiff can show a probability of prevailing on the merits.

Los Angeles Superior Court Judge Lorna Parnell denied the motion.

But Presiding Justice Paul A. Turner, writing for the appellate panel, said the motion should have been granted. The suit, he said, falls under provisions of Sec. 425.16 that protect statements made in judicial proceedings and statements about issues that are the subject of judicial proceedings.

Litigation Privilege

Turner rejected the plaintiff’s contention that the Civil Code Sec. 47(b)(2) litigation privilege precludes application of the anti-SLAPP law to malicious prosecution suits.

The presiding justice noted that the California Supreme Court has broadly interpreted Sec. 425.16, applying it to the filing of suits and to statements made in court. Carving out an exception to the statute solely for malicious prosecution cases, based upon the older legislation setting out the litigation privilege, would not be consistent with those rulings or with legislative intent, Turner said.

Turner also concluded that Sec. 425.16 protects attorneys in litigation, as well as their clients.

The presiding justice cited his own opinion in Shekhter  v. Financial Indemnity Co., (2001) 89 Cal.App.4th 141, holding that an attorney sued for actions undertaken on behalf of a client may bring an anti-SLAPP motion if the complaint implicates the lawyer’s own First Amendment rights.

Lawyers’ Statements

The two cases differed, Turner explained, in that the attorneys in Shekter were sued for conduct external to the litigation, including comments to the news media. But the holding should apply equally to statements made by lawyers in courtrooms or court documents, he said.

“When Mr. Brutzkus, acting as an advocate, filed papers and presented arguments in the underlying litigation, his advocacy activities arose out of the exercise of the right of free expression,” the presiding justice wrote.

Because the defendants established that their free-speech and petition rights were being impinged upon, Turner said, the burden shifted to the plaintiff to show a probability of success on the merits.

In an unpublished portion of the opinion, Turner said the plaintiff failed to carry that burden. There was, the jurist said, a good deal of evidence—including a letter from Jarrow’s attorney confirming contact between Jarrow and Merical—from which Butzkus and his client reasonably might have concluded that LaMarche’s failure to secure the Merical contract was a result of interference by Jarrow.

 The case is Jarrow Formulas, Inc. v. LaMarche, 02 S.O.S. 1498.


Copyright 2002, Metropolitan News Company