Tiger8 Media Inc. v. Mandavia Ephraim + Berg LLP

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TIGER8 MEDIA INC., Plaintiff and Appellant, v. MANDAVIA EPHRAIM + BERG LLP, Defendant and Respondent.

B322278

California Court of Appeals, Second District, Fourth Division

August 8, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No.20STCV41318, Robert B. Broadbelt, Judge. Affirmed.

Graham & Associates and Anthony G. Graham for Plaintiff and Appellant.

Yee & Associates, Steven R. Yee, William G. Sorkin for Defendant and Respondent.

COLLINS, ACTING P.J.

Appellant Tiger8 Media, Inc. (Tiger8) sued respondent law firm Mandavia Ephraim + Burg LLP (MEB)^[1] for malicious prosecution after it represented a screenwriter in a contract dispute with Tiger8. MEB filed a special motion to strike Tiger8's first amended complaint under the anti-SLAPP statute, Code of Civil Procedure section 425.16.^[2] After sustaining MEB's evidentiary objections to the substantive declarations and exhibits Tiger8 filed in opposition to the anti-SLAPP motion, the trial court found that Tiger8 failed to demonstrate a probability of success on the merits and granted the motion.

In this appeal, Tiger8 contends the ruling must be reversed because MEB's anti-SLAPP motion was untimely filed. It further contends that it has a probability of prevailing on the merits, and that MEB failed to present admissible evidence in support of the motion.^[3] We conclude the special motion to strike was timely filed, and it was properly granted due to Tiger8's failure to present admissible evidence establishing a probability of success on the merits. We accordingly affirm the judgment of dismissal. Tiger8's motion to augment the record on appeal is denied.

FACTUAL AND PROCEDURAL HISTORY

I. Screenwriter Action

In September 2017, MEB filed a breach of contract action against Tiger8 and several other defendants on behalf of a screenwriter. The complaint alleged that Tiger8 and the screenwriter entered into a written option purchase agreement, pursuant to which Tiger8 obtained the exclusive option to acquire all rights in a screenplay. Tiger8 and the screenwriter subsequently extended the option period three times, but Tiger8 never exercised the option to produce a film from the screenplay. The complaint alleged that Tiger8 instead assigned its option rights to the other defendants who were not proper assignees under the terms of the agreement. It further alleged that those defendants proceeded to develop and/or produce a film based on the screenplay without paying the screenwriter the option exercise price. It asserted causes of action for breach of contract, breach of the covenant of good faith and fair dealing, and declaratory relief against all defendants.

In March 2018, the screenwriter voluntarily dismissed his claims against the other defendants. Tiger8 moved for summary judgment in June 2018. The docket of the action, of which we take judicial notice on our own motion (Evid. Code, § 452, subd. (d)), shows that the screenwriter filed an opposition to the motion, and the court held at least one hearing on the motion. In August 2019, before the court ruled on the motion, the screenwriter dismissed his claims against Tiger8 with prejudice.

II. Orange County Action

On October 28, 2019, Tiger8 filed a verified complaint against MEB in Orange County Superior Court. Tiger8 alleged that MEB filed the screenwriter action "when there was literally no evidence of any kind that [Tiger8] ever breached the Agreement, and when the only substantive allegations in the complaint related to non-parties to that Agreement who were not employees, officers or directors of Tiger8." Tiger8 alleged that MEB had no "good cause to file the action since there was never a breach of the Agreement," and that MEB acted with malice by filing and maintaining suit despite a lack of evidence. Tiger8 asserted one cause of action for malicious prosecution and two causes of action for unfair competition under Business and Professions Code, section 17200 et seq.

On December 27, 2019, Tiger8 filed a proof of service of the summons and complaint.^[4] On January 6, 2020, MEB filed a motion for change of venue to Los Angeles Superior Court. After receiving briefing and holding a hearing, on August 18, 2020 the court issued a minute order granting the motion for change of venue. For reasons unclear from the record, the matter remained in Orange County and the court subsequently held several status conferences. Tiger8 ultimately dismissed the case without prejudice on October 28, 2020.

III. Los Angeles County Action

A. Complaint and First Amended Complaint

Later that same day, October 28, 2020, Tiger8 filed a complaint against MEB in Los Angeles County Superior Court. This complaint is not in the appellate record. Tiger8 asserts the summons and complaint were served on MEB on December 19, 2020, but the only evidence of service in the record is a docket entry for "Notice and Acknowledgement of Receipt" that Tiger8 filed on March 9, 2021.^[5]

Tiger8 filed a verified first amended complaint (FAC) on April 2, 2021, before MEB appeared in the action. The factual allegations of the FAC mirrored those of the Orange County action, but the FAC asserted only a single cause of action for malicious prosecution. A certificate of service indicates the FAC was electronically served on Tiger8 on April 2, 2021.

B. Anti-SLAPP Proceedings

1. Special Motion to Strike

On April 30, 2021, MEB filed a special motion to strike the FAC pursuant to section 425.16. MEB argued that the malicious prosecution claim was subject to a special motion to strike because it arose from MEB's litigation of the screenwriter action. It also argued that Tiger8 could not meet its burden of showing a reasonable probability of success on the merits of the malicious prosecution claim. MEB specifically asserted that Tiger8 could not show that MEB lacked probable cause to bring the screenwriter action, or that it brought or maintained the screenwriter action with malice. MEB also argued that the Los Angeles County action was barred by the one-year statute of limitations in section 340.6, because it was filed more than one year after the screenwriter dismissed his complaint against Tiger8. It further contended that Tiger8 could not maintain its action because it failed to comply with corporate formalities and had not yet paid the attorney fees and costs the Orange County Superior Court ordered in connection with the motion to transfer venue.

In support of its motion, MEB filed a declaration by attorney Anjani Mandavia, the firm's managing partner. Mandavia stated that MEB brought the screenwriter action "to protect the interests of my client" and "did not file or maintain the underlying action for any improper purpose. Defendant had no malice or ill will in filing or maintaining the underlying action on behalf of [the screenwriter]." She further stated MEB acted "pursuant to the instructions of [the screenwriter] and pursuant to Court's authorization, order, or approval." Mandavia stated that MEB had probable cause to believe the factual allegations in the screenwriter action "[b]ased on the evidence that was provided" by the screenwriter. Mandavia attached a copy of the option purchase agreement to her declaration.

MEB also requested that the court take judicial notice of its own docket sheet, the Orange County court's order granting the motion for change of venue and awarding MEB fees and costs, and a document Tiger8 filed with the Secretary of State.

2. Opposition

Tiger8 filed a written opposition to the anti-SLAPP motion on May 14, 2021. Tiger8 argued that the motion should be denied as untimely, because it was filed more than 60 days after MEB was served with "the initial complaint"-the complaint in the Orange County action. Tiger8 further argued that it could show a reasonable probability of prevailing on its malicious prosecution claim. It asserted that MEB lacked probable cause to file and maintain the screenwriter action, "since there was never any evidence of a breach of the Agreement by Tiger8." It further asserted that MEB acted with malice in a variety of ways. Tiger8 supported these assertions with an unsigned declaration from its counsel, Anthony Graham, that referred to exhibits that were not attached or filed. It also included a declaration from its president and sole shareholder, Justin Ackerman, regarding its compliance with corporate formalities.

3. Reply

MEB filed a reply in support of the anti-SLAPP motion on May 19, 2021. It noted that Tiger8 did not dispute the applicability of the anti-SLAPP statute, and asserted that "the burden thus shifts to plaintiff to establish with admissible evidence 'reasonable probability of success' on its sole purported cause of action for malicious prosecution." MEB argued that Tiger8 could not meet that burden, because its complaint was untimely, its opposition was overlong, and the unsigned Graham declaration it filed in support of its claim 'was "legally meaningless and inadmissible" and "references exhibits that are not part of his declaration or plaintiff's opposition." MEB further asserted that Tiger8 "did not object to or dispute the Mandavia declaration," which "clearly established that defendant acted with probable cause and did not act with malice in the underlying action." MEB also argued that it timely filed the anti-SLAPP motion within 60 days of being served with the original Los Angeles County complaint on March 8 or 9, 2021.

The docket also indicates that MEB filed with its reply separate objections to the Graham and Ackerman declarations and Tiger8's "improper opposition." These documents are not included in the appellate record.

4. Tiger8's Evidentiary Objections and Supplemental Declaration

On ...