Metropolitan News-Enterprise


Monday, November 27, 2017


Page 1


Court of Appeal:

Filing Cross-Complaint Over Being Sued Is a SLAPP


By a MetNews Staff Writer


The Court of Appeal has held that an anti-SLAPP motion should have been granted where the defendants, a ranch resort and others, cross complained on the ground that the plaintiff—who is suing over being thrown by a horse—lied that he is a “good rider,” prompting relaxed attention to his safety, now causing monetary damages in having to defend against his action.

The opinion, cast in terms of anti-SLAPP motions, is in harmony with the longstanding rule that a defendant may not cross-complain for malicious prosecution.

Justice Martin J. Tangeman of this district’s Div. Six wrote the opinion, filed Tuesday and not certified for publication. The opinion directs the granting of the special motion to strike by Solomon Tesfamichael, who was injured when a horse he was riding at Circle Bar B Ranch Resort, in Santa Barbara County, jumped.

Filled Out Form

The form he signed was a “Rental Application and Release of Liability Agreement.”

This appears at the top:

“I hereby make application for rental of a horse. I am a:

“☐  Novice Rider  ☐ Good Rider  ☐  Excellent Rider.”

Although checking the box next to “Good Rider,” he claimed in his complaint that he “was not an experienced rider” and “had only ridden a few times in the past.”

The defendant/cross-complainants argued that if Tesfamichael had told the truth on his application, he would have been assigned a different horse and heightened safety precautions would have been taken.

Trial Court’s Ruling

Santa Barbara Superior Court Judge Thomas Pearce Anderle denied the anti-SLAPP motion, reasoning that the litigation privilege does not preclude using allegations in Tesfamichael’s complaint for evidentiary purposes; that the privilege does not apply to the damages the cross-complainants asserted because it only concerns communications in litigation, not the effects of those communications; and the cross action had a probability of succeeding.

In his opinion reversing the denial of Tesfamichael’s motion, Tangeman agreed with Anderle to the extent that that Tesfamichael’s declaration in his complaint that he was an inexperienced rider was not privileged. He wrote the privilege does not bar use of the statement “for evidentiary purposes,” noting:

“The statement supports the inference that Tesfamichael made a knowing misrepresentation when he checked ‘Good Rider’—rather than ‘Novice Rider’—on his rental application.”

Basis for Reversal

But, Tangeman said, the privilege does bar the cross-complainants from seeking damages based on being sued “because the filing of a complaint is a protected communication.” He explained that “the fraud alleged here occurred prior to this litigation,” and the defendants “suffered no damages until Tesfamichael filed his complaint.”

Tangeman relied heavily on a 2003 Court of Appeal opinion in Navellier v. Sletten, a case based on a suit over prior litigation, rather than a cross complaint in present litigation, which he said was “instructive.”

The case is Tesfamichael v. PMB Stock Co., B279056.

Preexisting Law

Div. Six’s opinion, decided under the anti-SLAPP statute—Code of Civil Procedure §425.16, enacted in 1971—is in accord with decisions predating the statute which barred cross-complaints based on the asserted invalidity of the complaint.

“It is hornbook law,” the California Supreme Court said in its 1971 decision in Babb v. Superior Courtthat the plaintiff in a malicious prosecution action must plead and prove that the prior judicial proceeding of which he complains terminated in his favor.”

The court added:

“Because of this requirement, it is obvious that a defendant cannot cross-complain or counterclaim for malicious prosecution in the first or main action…, since a claim cannot state a cause of action at that stage of the proceedings.”


Copyright 2017, Metropolitan News Company