Showing Lack of Probable Cause: Plaintiff's Burden of Proof in Opposing an Anti-slapp Motion Attacking a Malicious Prosecution Claim

• Publication year: 2020
• Author: By Mark T. Drooks and Sharon Ben-Shahar Mayer

Showing Lack of Probable Cause: Plaintiff's Burden of Proof in Opposing an Anti-SLAPP Motion Attacking a Malicious Prosecution Claim

By Mark T. Drooks and Sharon Ben-Shahar Mayer

Mark T. Drooks is a partner at Bird Marella in Los Angeles.

Sharon Ben-Shahar Mayer is a partner at Bird Marella in Los Angeles.

An anti-SLAPP motion is a critical phase in a malicious prosecution case. Courts have long held that malicious prosecution claims fall within the purview of the anti-SLAPP statute, which gives the defendants an extraordinary tool to force plaintiffs to establish the prima facie merits of their case before discovery even starts. An anti-SLAPP motion can be case dispositive and, if successful, entitles the moving party to attorneys' fees. An order granting or denying the motion is immediately appealable and appellate review is de novo. It is therefore not surprising that anti-SLAPP motions are frequently filed in malicious prosecution cases, and there is substantial case law analyzing the elements of malicious prosecution. But analyzing the plaintiff's burden in establishing a lack of probable cause on an anti-SLAPP motion can get tricky.

Under the anti-SLAPP statute, once the court determines that the special motion to strike is appropriately invoked, the burden shifts to plaintiffs to prove, by competent admissible evidence, that it is probable they will prevail on their claims. (Code Civ. Proc., § 425.16, subd. (b).) To meet this burden, the plaintiffs must substantiate a legally sufficient claim that is supported by a sufficient prima facie showing of facts. (Jarrow Formulas v. LaMarche (2003) 31 Cal.4th 728, 741.) Courts do not weigh the evidence or determine credibility on an anti-SLAPP motion. (Squires v. City of Eureka (2014) 231 Cal. App.4th 577, 590-591.) Instead, the courts accept as true all evidence favorable to the plaintiffs and assess the defendants' evidence only to determine if it defeats the plaintiffs' submission as a matter of law. (Ibid.) Put another way, the party opposing an anti-SLAPP motion must present admissible evidence demonstrating "the existence of disputed material facts." (Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 112.) This standard is "'not high'" and the plaintiffs need to show only a "'minimum level of legal sufficiency and triability.'" (Squires, supra, at p. 591.)

[Page 35]

One of the elements that a malicious prosecution plaintiff must establish is that the prior action was brought without...