California
Appeals
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Standard of Review
The Anti-SLAPP Statute

Standard of Review-The Anti-SLAPP Statute Malicious Prosecution-Plumley v Mockett
 

DISCUSSION

I.          The Anti-SLAPP Statute and the Standard of Review

            Section 425.16, the anti-SLAPP statute, provides in relevant part:  “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.”  (§ 425.16, subd. (b)(1).)

            “Under this statute, the party moving to strike a cause of action has the initial burden to show that the cause of action ‘aris[es] from [an] act . . . in furtherance of the [moving party’s] right of petition or free speech.’  ([§425.16, subd. (b)(1)]; Equilon [Enterprises, LLC v. Consumer Cause, Inc. (2002)] 29 Cal.4th [53,] 67.)  Once that burden is met, the burden shifts to the opposing party to demonstrate the ‘probability that the plaintiff will prevail on the claim.’  (Code Civ. Proc., § 425.16, subd. (b)(1); Equilon, supra, 29 Cal.4th at p. 67.)  ‘To satisfy this prong, the plaintiff must “state[] and substantiate[] a legally sufficient claim.”  [Citation.]  “Put another way, 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.]’  (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741, fn. omitted.)”  (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.)

The parties agree that this malicious prosecution action arises from acts in furtherance of defendants’ right of petition or free speech.  (E.g., Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at pp. 734-735 [“[B]y its terms, section 425.16 potentially may apply to every malicious prosecution action, because every such action arises from an underlying lawsuit, or petition to the judicial branch”].)  Therefore, the issue on appeal is whether Plumley presented evidence in opposition to defendants’ anti-SLAPP motions that, if believed by the trier of fact, would be sufficient to support a judgment in his favor.  This question is one of law, and we review the trial court’s decision de novo.  (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 (Wilson), abrogated by statute on another point of law as stated in Hutton v. Hafif (2007) 150 Cal.App.4th 527, 545-550.)  In doing so, we “consider[] the pleadings and evidentiary submissions of both the plaintiff and the defendant ([Code Civ. Proc.,] § 425.16, subd. (b)(2)); though [we do] not weigh the credibility or comparative probative strength of competing evidence, [we will] 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.”  (Wilson, supra, at p. 821.)

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