Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Ct. No. BC419659, Helen I. Bendix, Judge.
Steven E. Shapiro for Plaintiffs and Appellants.
Law Offices of Michael I. Brooks and Michael I. Brooks for Defendant and Respondent.
MANELLA, J.
This is an appeal from an order of dismissal. The trial court granted respondent’s motion pursuant to Code of Civil Procedure section 425.16 (section 425.16) to strike a strategic lawsuit against public participation (anti-SLAPP motion). Appellants’ current malicious prosecution lawsuit followed underlying litigation asserting claims for employment harassment and discrimination. The trial court concluded that appellants failed to show evidence of malice and therefore could not demonstrate a probability of prevailing on their malicious prosecution lawsuit. We agree and affirm the dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
1. Underlying Litigation
Two lawsuits were filed against appellants. In August 2007, five employees of Sun Coast Merchandise Corporation (Sun Coast), sued Kumar Bhavnani, Dilip Bhavnani, and Khush Sidhu, alleging causes of action for discrimination, harassment, retaliation, and intentional infliction of emotional distress. On November 5, 2008, Eberth Escobar and three co-plaintiffs sued Sun Coast, Kumar Bhavnani, Dilip Bhavnani, and Khushwant Sidhu. Escobar and his co-plaintiffs alleged the same causes of action as those alleged in the earlier suit. Escobar described his lawsuit as one to redress violations of the California Fair Employment and Housing Act (FEHA). Escobar alleged that the Bhavnanis and Sidhu repeatedly uttered offensive remarks directed at Hispanic workers.
The plaintiffs alleged they were employees of Sun Coast. Sun Coast denies that they were employees. For purposes of the present case, the resolution of that question is irrelevant.
Because Kumar Bhavnani and Dilip Bhavnani (father and son respectively) share a surname, we refer to them by their first names. In the first lawsuit, the plaintiffs named Khush Sidhu as a defendant, and in the second they named Khushwant Sidhu as a defendant.
On March 5, 2009, Escobar dismissed his lawsuit.
2. Current Litigation
On August 11, 2009, Kumar, Dilip, and Sun Coast (appellants) filed the instant lawsuit against Escobar, asserting a single cause of action for malicious prosecution.
On November 4, 2009, appellants filed a first amended complaint (FAC), again alleging a single cause of action for malicious prosecution. In their FAC, appellants alleged that Escobar filed the underlying litigation knowing that the allegations in his complaint were false. Appellants alleged that they believed Escobar initiated the underlying litigation with the purpose of forcing a settlement.
3. Anti-SLAPP Motion
On September 14, 2009, prior to the filing of the FAC, Escobar filed an anti-SLAPP motion, attaching supporting documentation from himself, his attorney, and his coworkers. According to both Escobar and his attorney, Escobar dismissed the underlying litigation because he realized his causes of action were time-barred. Other workers at Sun Coast testified in their depositions that appellants made racially derogatory comments directed at Mexicans. Similarly, Escobar averred in his declaration that Dilip and Kumar hurled racially offensive and insulting remarks at him on a daily basis. In addition to requesting the court strike appellants’ malicious prosecution cause of action, Escobar sought attorney fees in the amount of $12,300.
Olivia Sanchez testified at her deposition that Khumar said, “‘Stupid Mexicans. Wetback Mexicans. Thieves. Go back to Mexico. You guys are no good for nothing. You’re only ripping me off. And you’re coming here to rip me off.’” According to Sanchez, Dilip said that “Mexicans were no good for anything.” She further claimed that both Khumar and Sidhu would use profanity when referring to Mexicans. Luis Alfredo Ochoa testified at his deposition that Kumar threatened to kill him. Kumar also allegedly used profanity when referring to Mexicans and described them as stupid. Ochoa heard Sidhu and Dilip utter racist comments, referring to Mexicans. Javier Humberto Salazar testified at his deposition that Kumar and Sidhu would say, “stupid Mexicans” and other derogatory comments directed at Mexicans.
4. Opposition to Escobar’s Anti-SLAPP Motion
Appellants opposed the anti-SLAPP motion. Dilip averred that neither he nor the other appellants had made racially derogatory comments in the workplace. Kumar and Sidhu similarly denied having made any racially derogatory remarks. Further, according to Dilip, appellants had settled the first lawsuit against appellants for “‘nuisance value, ’” solely to avoid the cost of litigation. Dilip stated that Escobar and his co-plaintiffs brought the underlying litigation a few months after the first case had settled. Dilip also averred that racial slurs were contrary to “the grain of the culture” at Sun Coast, which allegedly employed numerous Hispanics, including some in management positions. Appellants also submitted deposition testimony from Cesar Wilfredo Guerra, who received raises and bonuses during his tenure at Sun Coast.
Guerra’s deposition testimony also included statements that appellants repeatedly made racially derogatory comments in the workplace, including comments directed at Escobar. The deposition testimony submitted by appellants also included that of Rene Estrada, Mario Anibal Manzon, Ochoa and Salazar, who testified to appellants’ repeated use of ethnic slurs, profanity and references to Mexicans and other Hispanics as “stupid” and “lazy.”
5. Anti-SLAPP Hearing and Ruling
On November 17, 2009, at a hearing on Escobar’s anti-SLAPP motion, appellants argued that their declarations showed the alleged racial slurs were never uttered. Based on that predicate, they further argued (1) that Escobar must have known the allegations in the underlying litigation were false, and (2) that malice could be inferred from the knowingly false allegations. Escobar argued there was no evidence that he filed a lawsuit knowing the allegations were untrue or with the intent to extort an improper settlement.
The court found: “Plaintiffs have not proffered any evidence from which to infer that the underlying suit was brought with the motive of extorting a settlement. They merely surmise that because there was a different FEHA suit brought by different plaintiffs represented by defense counsel herein, which different case settled before defendant filed his FEHA suit, defendant must have been trying to extort a similar settlement by making false accusations. This is not evidence; it is argument and speculation. Nor have plaintiffs proffered evidence regarding any improper intent or motive on the part of defendant in bringing the underlying FEHA case.” The court granted the anti-SLAPP motion to dismiss and awarded Escobar attorney fees in the amount of $12,300. Appellants appeal from the order of dismissal.
DISCUSSION
Appellants argue the court erred in granting Escobar’s anti-SLAPP motion because they demonstrated a prima facie case of malice. As explained below, we find no evidence demonstrating malice. Prior to discussing appellants’ specific contentions, we review the showing necessary to withstand an anti-SLAPP motion and the elements necessary to establish a cause of action for malicious prosecution.
Appellants filed their FAC after respondent filed his anti-SLAPP motion. Nevertheless, we reject Escobar’s contention that only the original complaint was properly before the court. First, Escobar did not challenge the amendment, and the trial court based its order on the FAC. Second, appellants were entitled to amend their complaint to reflect evidence in their evidentiary submissions opposing Escobar’s anti-SLAPP motion. (Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 862-863, 871-873.) Here, the facts contained in the FAC were before the court, and there was no risk that the purpose of the anti-SLAPP statute would be thwarted by delay. (See Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074 [purpose of anti-SLAPP statute is to provide quick, inexpensive method of dismissing SLAPP suits].)
1. Principles of an Anti-SLAPP Motion
“‘The anti-SLAPP statute arose from the Legislature’s recognition that SLAPP suit plaintiffs are not seeking to succeed on the merits, but to use the legal system to chill the defendant’s first amendment right of free speech.’ [Citation.] ‘To prevail on an anti-SLAPP motion, the movant must first make “‘a threshold showing that the challenged cause of action’ arises from an act in furtherance of the right of petition or free speech in connection with a public issue.” [Citation.] Once the movant meets this burden, the plaintiff must demonstrate “‘a probability of prevailing on the claim.’” [Citation.] If the plaintiff cannot meet this burden, the trial court must strike the cause of action. [Citation.]’” (Nguyen-Lam v. Cao, supra, 171 Cal.App.4th at p. 866; see also Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 [describing burden-shifting process required in analyzing an anti-SLAPP motion].)
“‘To establish a probability of prevailing, the plaintiff “‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.’” [Citation.] In doing so, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant. [Citation.] Although “the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.” [Citation.] Moreover, the plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial. [Citation.]’” (Nguyen-Lam v. Cao, supra, 171 Cal.App.4th at pp. 866-867.) “The plaintiff need only establish that his or her claim has ‘minimal merit.’” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (Soukup).)
There is no dispute that appellants’ malicious prosecution cause of action arose out of an act in furtherance of the right of petition or free speech in connection with a public issue. (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-736 [complaint for malicious prosecution arises out of act in furtherance of right of free speech or petition under section 425.16].) The sole issue on appeal is whether the trial court correctly found that appellants failed to demonstrate a probability of prevailing on the malicious prosecution claim.
2. Malicious Prosecution
“To prevail on a malicious prosecution claim, the plaintiff must show that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination favorable to the plaintiff; (2) was brought without probable cause and (3) was initiated with malice.” (Soukup, supra, 39 Cal.4th at p. 292.)
The question of probable cause is “‘whether as an objective matter, the prior action was legally tenable or not.’ [Citation.] ‘A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.’ [Citation] ‘In a situation of complete absence of supporting evidence, it cannot be adjudged reasonable to prosecute a claim.’” (Soukup, supra, 39 Cal.4th at p. 292; Jarrow Formulas, Inc. v. La Marche, supra, 31 Cal.4th at p. 743, fn. 13, italics omitted [“‘Suits which all reasonable lawyers agree totally lack merit -- that is, those which lack probable cause -- are the least meritorious of all meritless suits. Only this subgroup of meritless suits present[s] no probable cause’”].)
“‘The “malice” element... relates to the subjective intent or purpose with which the defendant acted in initiating the prior action. [Citation.] The motive of the defendant must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose. [Citation.] The plaintiff must plead and prove actual ill will or some improper ulterior motive.’ [Citation]... Malice ‘may range anywhere from open hostility to indifference. [Citations.] Malice may also be inferred from the facts establishing lack of probable cause.’” (Soukup, supra, 39 Cal.4th at p. 292, citing Grindle v. Lorbeer (1987) 196 Cal.App.3d 1461, 1465-1466, italics omitted.) However, “‘[m]erely because the prior action lacked legal tenability, as measured objectively... without more, would not logically or reasonably permit the inference that such lack of probable cause was accompanied by the actor’s subjective malicious state of mind.’” (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 743, italics omitted.)
Applying the forgoing principles, in HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218, the court held that there was evidence of malice sufficient to withstand an anti-SLAPP motion where the defendants took no depositions, promulgated one set of interrogatories and refused to dismiss a baseless lawsuit without a payment of $25,000. In Padres L.P. v. Henderson (2003) 114 Cal.App.4th 495, 522, the court held that repeatedly filing litigation to derail the development of a ballpark supported a prima facie case of improper motive sufficient to withstand an anti-SLAPP motion. In Daniels v. Robbins (2010) 182 Cal.App.4th 204, the court found an inference of malice where there was evidence the plaintiff in the underlying litigation had threatened the defendant, and the underlying suit “may have been to exact revenge....” (Id. at p. 225.) That same evidence, however, was insufficient to show malice on the part of the attorneys representing the plaintiff in the underlying litigation, even though they failed to adequately investigate the plaintiff’s factual assertions prior to instigating the litigation. (Ibid.)
Grindle v. Lorbeer, supra, 196 Cal.App.3d 1461, the case cited by our high court in Soukup for the proposition that malice may be inferred from an absence of probable cause is instructive. The issue in Grindle was whether careless prefiling research, which supported a finding of a lack of probable cause, also supported a finding of malice. (Id. at p. 1463.) The court explained that although malice may be inferred from the facts establishing an absence of probable cause, probable cause and malice are not equivalent, and the inference of malice is not “‘automatic’” from the absence of probable cause. (Id. at pp. 1465, 1466.) The appellate court affirmed the entry of summary judgment, finding no inference of malice arose from careless prefiling research. (Id. at p. 1467.) There was no evidence of overt malice, or malicious purpose in filing the underlying litigation, and the dismissal of the underlying litigation “refute[d] the existence of an ulterior motive.” (Id. at p. 1467.) The court concluded the evidence was “consistent with a finding that [defendant] had filed the lawsuit in a good faith belief it had merit and discontinued the lawsuit upon realizing it was without merit.” (Ibid.)
3. Appellants Fail to Meet Their Burden
Emphasizing evidence that they denied making racially derogatory comments, appellants argue that Escobar lacked probable cause for his underlying suit because he relied on facts that he had no reasonable cause to believe to be true. Appellants further claim that malice may be inferred (1) from the absence of probable cause and (2) from appellants’ belief that Escobar harbored the improper motive of forcing a settlement when he filed the underlying litigation.
Appellants fail to establish a prima facie showing of facts sufficient to sustain a favorable judgment. (See Nguyen-Lam v. Cao, supra, 171 Cal.App.4th at pp. 866-867.) As noted, an inference of malice is not automatic from the lack of probable cause. (Grindle v. Lorbeer, supra, 196 Cal.App.3d at pp. 1465-1466.) Here, no facts underlying the absence of probable cause support an inference of malice. (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 743 [absence of probable cause alone insufficient to show malicious state of mind].) The only facts underlying the absence of probable cause -- appellants’ denials of the allegations in Escobar’s complaint -- fail to support an inference that Escobar acted with ill will in filing the underlying litigation. Appellants’ assume that Escobar knew of the falsity of the allegations in his complaint, but fail to provide any evidentiary support for their speculation. (See Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 452 [“It is also said that a plaintiff acts with malice when he asserts a claim with knowledge of its falsity, because one who seeks to establish such a claim ‘can only be motivated by an improper purpose.’”].) In short, notwithstanding their denials, appellants presented no evidence that Escobar acted with malice in filing the underlying litigation.
Appellants remaining claim -- that Escobar’s improper intent to extract a settlement demonstrates a probability of prevailing on the malice element -- also lacks merit. The satisfaction of a personal or financial purpose is not improper. (Soukup, supra, 39 Cal.4th at p. 292.) There was no evidence that Escobar initiated the proceeding for the purpose of forcing a settlement that had no relation to the merits of his claims. (HMS Capital, Inc. v. Lawyers Title Co, supra, 118 Cal.App.4th at p. 218 [malice may exist where proceedings “are initiated for the purpose of forcing a settlement which has no relation to the merits of the claim”].) The fact that Escobar dismissed his lawsuit without attempting to extract a settlement is undisputed. (Nguyen-Lam v. Cao, supra, 171 Cal.App.4th at p. 866 [“Although ‘the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the [anti-SLAPP] motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.’”].) As in Grindle v. Lorbeer, supra, 196 Cal.App.3d at page 1467, the evidence Escobar dismissed his lawsuit “refute[d] the existence of an ulterior motive” to extract an improper settlement. In short, the trial court properly granted Escobar’s anti-SLAPP motion.
Nor does Ross v. Kish (2006) 145 Cal.App.4th 188, 204, in which the court inferred malice from evidence that a client filed a lawsuit for breach of contract and legal malpractice against his former attorney for the improper purpose of retaliating against the attorney who sought to recover unpaid fees. In Kish, there was evidence supporting the inference of retaliation, as the allegations in the client’s complaint were contradicted by his own prior statements lauding the attorney’s work, expressing “‘how happy he was with the result, ’” and “‘thank[ing] [the attorney] for getting him off so incredibly cheaply.’” (Id. at p. 196.) The client complained of his attorney’s representation only after the attorney sought unpaid fees. (Id. at pp. 196, 204.) Here, there was no evidence supporting an inference of an improper motive.
Albertson v. Raboff (1956) 46 Cal.2d 375 (Albertson), does not compel a different result. There, the Supreme Court allowed a plaintiff to amend a malicious prosecution complaint to allege malice by setting forth the defendant’s purpose in falsely claiming an interest in her property. In contrast to Albertson, the issue here is not whether appellants could state a cause of action, but whether they produced evidence establishing a probability of prevailing on their claim. For the reasons explained above, they did not.
Albertson has been partially abrogated on another point as explained in Wilton v Mountain Wood Homeowners Assn. (1993) 18 Cal.App.4th 565, 569, fn. 1.
DISPOSITION
The trial court’s order dismissing the lawsuit and awarding attorney fees is affirmed. Respondent shall have his costs on appeal.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.
Appellants argue that there was other evidence showing they favorably treated Hispanic employees, including evidence they promoted Hispanic employees. None of the evidence they cite has any bearing on Escobar’s state of mind at the time he filed the underlying litigation.
Finally, because we conclude the trial court order dismissing the lawsuit was correct, we need not consider appellants’ argument concerning attorney fees, which is predicated on our reversal of the dismissal order.