Kahane v. Jansen - No. A115269, 2008 Cal. App. Unpub. LEXIS 9719 (Dec. 3, 2008)

Rule:

Section 425.16 is commonly referred to as the anti-SLAPP law. It provides, in relevant part, that "a cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

Facts:

Years ago, defendants Lynn and Cindy Jansen sued Brent Tucker, Tucker's company T.A. Tucker Associates, Inc. (TATA), and their attorney, plaintiff Dennis Kahane for breach of fiduciary duty, fraud (concealment), constructive fraud, unfair business practices, professional malpractice, conspiracy, constructive trust, accounting and restitution. The lawsuit arose out of a dispute regarding a development project. Plaintiff ultimately prevailed in the litigation on all of the defendants’ claims. Plaintiff then brought this action for malicious prosecution against the defendants and all of their attorneys. Defendants filed special motions to strike, pursuant to Code of Civil Procedure section 425.16, which were granted. Plaintiff appealed the granting of the motions and the dismissal of his complaint. According to him, the defendants’ unsuccessful lawsuit against him destroyed his law practice and resulted in the loss of many thousands of dollars in fees. Thus, he sought compensation for those damages. 

Issue:

Did the trial court err in granting defendants motion to strike pursuant to Code of Civil Procedure section 425.16?

Answer:

No.

Conclusion:

The court discern no error on the trial court’s decision thus, the court affirmed the judgment. The court concluded that plaintiff has not made out a prima facie case that the lawsuit against him was filed without probable cause. The court held that a fortiori, the filing of the appeal, which was ultimately abandoned, also cannot support a malicious prosecution claim. Hence, the trial court was correct in granting the motions to strike. The court ruled that there was no need to determine whether the underlying action was initiated with malice.