Metropolitan News-Enterprise


Tuesday, August 19, 2003


Page 1


Supreme Court Rules:

Malicious Prosecution Suits Subject to Anti-SLAPP Motions


By DAVID WATSON, Staff Writer


Malicious prosecution suits implicate First Amendment concerns and are subject to motions to strike under Code of Civil Procedure section 425.16, the anti-SLAPP statute, the state Supreme Court ruled yesterday.

The court unanimously affirmed a March ruling by this district’s Court of Appeal in a dispute between a graphic artist and her lawyer and a client they countersued for disparaging her to a potential customer.

The countersuit was part of municipal court litigation over ownership rights to advertising artwork for the client, a manufacturer of vitamins and supplements. Neither side recovered on its claims in the underlying cross-actions.

Div. Five correctly interpreted the statute, which burdens potential strategic lawsuits against public participation by requiring them to demonstrate a probability of prevailing in order to survive a motion to strike, Justice Kathryn Werdegar wrote for the court. The appellate court had overturned Los Angeles Superior Court Judge Lorna Parnell’s ruling denying a motion to strike the malicious prosecution claim.

Encino Attorney

Encino attorney Mark Brutzkus and his client, graphic artist and designer Sandra Hogan LaMarche, were entitled to require Jarrow Formulas, Inc. to establish in advance the merits of the malicious prosecution claim, Werdegar said. Malicious prosecution actions fall under provisions of Sec. 425.16 that protect statements made in judicial proceedings and statements about issues that are the subject of judicial proceedings, the justice explained.

“As the Court of Appeal noted, LaMarche was sued for filing a cross-complaint in the former municipal court and Brutzkus, her attorney, for written and oral statements he made while acting as an advocate for LaMarche in the municipal court action,” Werdeger wrote. Such actions fall within the “plain language” of the anti-SLAPP provision making it applicable to any “cause of action against a person arising from any furtherance of the person’s right of petition,” she said.

The statute also contains a provision requiring it to be construed broadly, the justice noted.

Werdegar said the court was “not persuaded” by Jarrow’s argument that malicious prosecution suits should be exempted from the anti-SLAPP law on the same basis that they are exempt from the litigation privilege embodied in Civil Code Sec. 47(b)(2).

The justice declared:

“Jarrow’s attempted analogy between the litigation privilege and the anti-SLAPP statute is inapt. As the Court of Appeal noted, the litigation privilege is an entirely different type of statute than section 425.16. The former enshrines a substantive rule of law that grants absolute immunity from tort liability for communications made in relation to judicial proceedings...; the latter is a procedural device for screening out meritless claims....”

Elements of Tort

She also rejected Jarrow’s contention that application of the anti-SLAPP procedures was unnecessary because malicious prosecution claims are in effect “pre-screened,” since it is an element of the tort that the underlying claim have lacked probable cause.

“That malicious prosecution has elements and that a plaintiff must prove these in order to recover, of course, hardly makes malicious prosecution unique among torts,” Werdegar observed. “Nor does the malicious prosecution tort’s utility in combating meritless and harassing litigation preclude the possibility that a particular malicious prosecution action may itself be meritless or designed to harass.”

The justice added:

“We cannot infer from any generalized overlap in the stated legislative aims underlying section 425.16...and the policies we have recognized as supporting the existence of the malicious prosecution tort...that the Legislature could not have discerned a role for the anti-SLAPP mechanism in the malicious prosecution context. Considered as devices for screening out meritless suits, the anti-SLAPP device and the lack-of-probable-cause element of malicious prosecution are perhaps similarly focused, but they are not duplicates. A malicious prosecution defendant who in fact had probable cause in the underlying action may, depending on the circumstances of the particular case, be able to obtain dismissal on that ground only after protracted and costly litigation.”

Werdegar said the fact that the underlying cross-complaint, in which LaMarche alleged 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, was summarily adjudicated against her did not establish, as a matter of law, that Jarrow had a “probability of prevailing” on the malicious prosecution claim.

A summary judgment demonstrates neither that the claim was untenable when filed nor the malice element of malicious prosecution, she said.

The case is Jarrow Formulas, Inc. v. LaMarche 03 S.O.S. 4509.


Copyright 2003, Metropolitan News Company