Jarrow Formulas, Inc. v. LaMarche

3 Cal.Rptr.3d 636

31 Cal.4th 728

74 P.3d 737

JARROW FORMULAS, INC., Plaintiff and Appellant, v. Sandra Hogan LaMARCHE et al., Defendants and Appellants.

No. S106503.

Supreme Court of California.

August 18, 2003.

Law Offices of Neal T. Wiener, Neal T. Wiener, Beverly Hills; Patton Boggs, Steven M. Schneebaum and Kathleen J. Lester, Wash., DC, for Plaintiff and Appellant.

Law Offices of Michael J. Piuze, Michael J. Piuze; Manning & Marder, Kass, Ellrod, Ramirez and David J. Wilson, Los Angeles, for Michael J. Piuze as Amicus Curiae on behalf of Plaintiff and Appellant.

Justin M. Jacobs, Jr., as Amicus Curiae on behalf of Plaintiff and Appellant.

Robie & Matthai, Edith R. Matthai, Kyle Kveton, Natalie A. Kouyoumdjian, Los Angeles, Marta A. Alcumbrac; Stephan, Oringher, Richman & Theodora, Los Angeles, Harry W.R. Chamberlain II, Robert M. Dato and Brian P. Barrow, for Defendants and Appellants.

Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Theodora Berger, Assistant Attorney General, Craig C. Thompson, Edward G. Weil and Susan S. Fiering, Deputy Attorneys General, for People of the State of California, ex rel. Bill Lockyer, Attorney General, as Amicus Curiae on behalf of Defendants and Appellants.

Law Offices of James J. Moneer and James J. Moneer for Law Office of Herbert Hafif, Herbert Hafif, Greg K. Hafif, Cynthia D. Hafif, Aitken, Aitken & Cohn, Wylie Aitken, Darren Aitken, James J. Moneer and the Law Offices of James J. Moneer as Amici Curiae on behalf of Defendants and Appellants.

WERDEGAR, J.

The question presented is whether this malicious prosecution action is exempt from scrutiny under Code of Civil Procedure section 425.16 (section 425.16), the anti-SLAPP¹ statute. We conclude it is not. Accordingly, we affirm the judgment of the Court of Appeal.

Background

Plaintiff Jarrow Formulas, Inc. (Jarrow), a manufacturer of vitamins and nutritional supplements, engaged defendant Sandra Hogan LaMarche (individually and doing business as The Network, hereafter LaMarche), a graphic designer, to design labels for its products. A dispute arose about the ownership of certain artwork, and Jarrow sued LaMarche for rescission and fraud. Represented by defendant Mark Brutzkus, LaMarche cross-complained against Jarrow for slander of title and interference with economic advantage. Jarrow obtained a summary judgment and dismissal of the cross-complaint. After a bench trial on Jarrow's complaint, the court entered judgment in favor of LaMarche.

Subsequently, Jarrow filed this malicious prosecution action against both LaMarche and Brutzkus, alleging they had filed the cross-complaint in the prior action maliciously and without probable cause. LaMarche and Brutzkus moved to strike Jarrow's malicious prosecution complaint pursuant to section 425.16. The trial court denied the motion, stating that a malicious prosecution action is not subject to scrutiny under the anti-SLAPP statute. Defendants appealed.

The Court of Appeal reversed, holding that a malicious prosecution cause of action can be subject to section 425.16. The court further held that both LaMarche and Brutzkus had satisfied their initial burden under the anti-SLAPP statute of proving that Jarrow's malicious prosecution claim arose from acts in furtherance of their speech and petition rights (§ 425.16, subd. (b)(1)) and that Jarrow did not meet its responsive burden of establishing a probability of success on the merits. Accordingly, the Court of Appeal directed the trial court to grant the anti-SLAPP motion. We granted Jarrow's petition for review.

Discussion

Section 425.16 provides, inter alia, 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." (§ 425.16, subd. (b)(1).)

Resolution of an anti-SLAPP motion "requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken `in furtherance of the [defendant's right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685 (Equilon).) Since the trial court in this case denied LaMarche's anti-SLAPP motion on the ground that the statute's initial, "arising from," prong does not encompass malicious prosecution claims, it did not reach the statute's second, "probability of prevailing," prong. As noted, in reversing, the Court of Appeal ruled for defendants on both prongs.

A. "Arising from" prong

Our primary task in construing a statute is to determine the Legislature's intent. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724, 257 Cal.Rptr. 708, 771 P.2d 406.) Where possible, "we follow the Legislature's intent, as exhibited by the plain meaning of the actual words of the law...." (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632, 59 Cal. Rptr.2d 671, 927 P.2d 1175.) Our anti-SLAPP jurisprudence heretofore has scrupulously honored this principle.

In Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 81 Cal.Rptr.2d 471, 969 P.2d 564 (Briggs), when first construing the "arising from" prong of section 425.16, we held on the basis of the statute's plain language that a defendant moving specially to strike a cause of action arising from a statement or writing made in connection with an issue under consideration in a legally authorized official proceeding need not separately demonstrate that the statement or writing concerns an issue of public significance. (Briggs, supra, at p. 1109, 81 Cal.Rptr.2d 471, 969 P.2d 564.) And in a trio of opinions issued last year, we held that the plain language of the "arising from" prong encompasses any action based on protected speech or petitioning activity as defined in the statute (Navellier v. Sletten (2002) 29 Cal.4th 82, 89-95, 124 Cal.Rptr.2d 530, 52 P.3d 703 (Navellier)), rejecting proposals that we judicially engraft the statute with requirements that defendants moving thereunder also prove the suit was intended to chill their speech (Equilon, supra, 29 Cal.4th at p. 58, 124 Cal.Rptr.2d 507, 52 P.3d 685) or actually had that effect (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 75,124 Cal.Rptr.2d 519, 52 P.3d 695).

The Court of Appeal, in concluding that this malicious prosecution action falls within the anti-SLAPP statute's "arising from" prong, adhered to our plain language approach. As we previously have observed, "plainly read, section 425.16 encompasses any cause of action against a person arising from any statement or writing made in, or in connection with an issue under consideration or review by, an official proceeding or body." (Briggs, supra, 19 Cal.4th at p. 1113, 81 Cal.Rptr.2d 471, 969 P.2d 564.) Consistently with that observation, the Court of Appeal held that this action, which is based on allegations that LaMarche and Brutzkus maliciously and without probable cause brought and maintained a cross-complaint against Jarrow in the course of a civil lawsuit, is subject to anti-SLAPP scrutiny.

The Court of Appeal grounded its conclusion in the anti-SLAPP statute's express definition of 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." (§ 425.16, subd. (b)(1).) That definition, which is found in subdivision (e) of the statute, places within section 425.16's purview "any written ... statement or writing made before a ... judicial proceeding," "any written ... statement or writing made in connection with an issue under consideration or review by a ... judicial body," and "any other conduct in furtherance of the exercise of the constitutional right of petition." (§ 425.16, subd. (e)(1), (2) & (4).) 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. Accordingly, the Court of Appeal reasoned, this action falls within the ambit of a "cause of action against a person arising from any act ... in furtherance of the person's right of petition" (§ 425.16, subd. (b)(1)), as statutorily defined.

As a plain language matter, the Court of Appeal unquestionably was correct. Indeed, the point is not disputed. Jarrow concedes that, by 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. By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit. (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1130-1131, 270 Cal.Rptr. 1, 791 P.2d 587.)² Accordingly, every Court of Appeal that has addressed the question has concluded that malicious prosecution causes of action fall within the purview of the anti-SLAPP statute. (See, e.g., White v. Lieberman (2002) 103 Cal.App.4th 210, 220-221, 126 Cal.Rptr.2d 608; Mattel, Inc. v. Luce, Forward,...