, .

.... -"~ ~--'-'-'~1

,

~" •.•. t."':\\. !~I \ ... ~ ! .' ..~. ..;J..' I

,

r:ll,·.:K" >'1

3 6:----·-----.1

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

DATE; 03/18/10

HONORABLE GREGORY W. ALARCON

JUDGE B. GREGG

DEPT.

DEPUTY CLERK

--

"i.

HONORABLE

JUDGE PRO TEM

ELECTRONIC RECORDING MONITOR

P. MAPSTEAD, C.A.

Deputy Sheriff NONE

Reporter

12: 00 pm BC _

STEVEN • ET AL

VS

RACHEL •••• ET AL

Plaintiff Counsel

NO APPEARANCES

Defendant Counsel

NATURE OF PROCEEDINGS:

I

.• T:k "'1

.. .. -._. - __ . ." .. :~", ,. i

DATE:

NOTICE OF RULING OF MATTER TAKEN UNDER SUBMISSION:

. MOTION FOR DEFENDANTS . I AND _

FOR ANORDER STRIKING PLAINTIFFS COMPLAINT IN ITS ENTIRETY UNDER CCP S425.16;

HONORA!'L ~.

HO?·;Ok..J\Bl. :

'The court, having taken the matter under submission =---"=on 3/16/2010, hereby makes its ruling as follows:

·1.2 :.0 l__' ... ·iy"

The Special Motion of Defendants

.... and For An Order Striking

Plaintiffs' Complaint In Its Entirety Under CCP § 425.16 is granted. A Motion For Attorneys Fees and Costs Pursuant to CCP § 425.16(c) (1) is set for April 30, 2010 at 8:30 a.m. Briefs to be filed and

_'''.' __ ''.'_ __ served in accordance with the provisions of CCP § ----.-.. . .. _ 1005.

I1When a special motion to strike is filed, the initial burden rests with the defendant to demonstrate that the challenged cause of action ~I\)":;'."'!;. arises from protected activity. (Citations

omitted. ) 11 Brill Media Co., LLC v. TCW Group I Inc. (2005) 132 Cal.App.4th 324, 329. As further stated in Brill Media: In determining whether a defendant sustained its initial burden of proof, the court

._. __ .... _ .. relies on the pleadings and declarations or affidavits. Code of Civil Procedure section 425.16, subdivision (b) states:l1{l) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or

,"t.

:

Page

1 of

5

DEPT. 36

MINUTES ENTERED 03/18/10

COUNTY CLER~"

SUPERIOR COURT OF CALIFORNIA. COUNTY OF LOS ANGELES

P. MAPSTEAD, C.A.

- -_-- -'_ -.~-~ "1

;",-,'rt_;::'i{jj;fi 1

I

DEPT. 36 - ; { l

'. - . ." -~, ... - .. _J

DATE: 03/18/10

HONORABLE

HONORABLE GREGORY W. ALARCON

ELECTRONIC RECORDING MONITOR

JUDGE B. GREGG

DEPUTY CLERK

JUDGE PRO TEM

Deputy Sheriff NONE

Reporter

12'; 00 pm sc __ ••• 111

Plaintiff Counsel

STEVEN _ ET AL VS

RACHEL ET AL

NO APPEARANCES

Defendant Counsel

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. [~] (2) In making its

'determination, the court shall consider the =--.---:-=::," -;_:- - pleadings, and supporting and opposing affidavits 12: 00 V' stating the facts upon which the liability or defense is based." (Italics added.)

Id. at 329.

Here, the sole cause of action alleged against Defendants is for malicious prosecution, arising out of Defendants filing of a lawsuit against Plaintiffs. Defendants! filing of the underlying

"lawsuit is an exercise of [Defendants!] constitutional right of petition. II Chavez v.

Mendoza (2001) 94 Cal.App.4th 1083, 1087. Thus, a malicious prosecution cause of action arising from Defendants! constitutionally protected petitioning

activity is subject to the anti-SLAPP statute. Id. at 1087-89. Accordingly, Defendants have met their initial burden of proof, and lithe burden shifts to plaintiff to establish a probability that he or she

will prevail on the claim at trial, i.e., to proffer a prima facie showing of facts supporting a judgment in the plaintiff!s favor. II Id. at 1087.

Here, Plaintiffs have not demonstrated a probability of prevailing on the malicious prosecution claim. To state a cause of action for malicious prosecution, lIa plaintiff must demonstrate

DXI!;; C ; I

HONOR.\I.; :

i-tON(jR v-

NATURE OF PROCEEDINGS:

Page

2 of

, ; .. ' ..

5

DEPT. 36

MINUTES ENTERED 03/18/10

COUNTY CLERK

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

HONORABLE GREGORY W. ALARCON

JUDGE B. GREGG

P •• '.'_"'_"".-,.p.,

'-)11' .~~: R::::D ~

,

DATE: 03/18/10

DEPT. 36

::. ;.'~

- - __ :." .. -. _ ..i

DEPUTY CLERK

HONORABLE

JUDGE PRO TEM

ELECTRONIC RECORDING MONITOR

P. MAP STEAD , C.A.

Deputy Sheriff NONE

Reporter

.. ~ . U"

'that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's, favor (citations] i (2) was brought without probable cause [citations]; and (3) was initiated with malice

[citations].l (Citations omitted.) II Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 341.

Plaintiffs have not shown that the

Pi' underlying action was filed by Defendants without probable cause. Plaintiffs' only evidence in this regard are: a statement by Defendant ........

that if they sued a family member, eventually, "one of them would come up with the money" (Flores Decl.,

~ 4); deposition testimony by that

he had no idea what happened to the $50,000 given to

~~,,::::::::::::C::-::~~~~~~a.n.dilt~h~at the fact

that and Steven were

brothers in the same business was good enough reason to believe there was a secret agreement between them

to defraud of its $50,000. See

Depo., at Pages 41, 50 attached to Plaintiffs' Evidence. While this may reflect a

cavalier attitude by the siblings about

suing Steven and , neither

the foregoing evidence, nor the self-serving

Declaration of Steven regarding what he did

" or did not do vis-a-vis his brother's auto body business, negates probable cause or establishes malice.

Finally, other, evidence offered by Plaintiffs may reflect upon the attitude and professional

Plaintiff Counsel

12:00 pm BC

STEVEN .... VS

RACHEL ••••• ET AL

ET AL

NO APPEARANCES

Defendant Counsel

NATURE OF PROCEEDINGS:

UGi-.JORAH. h

12;00

..:::.~ ~;.>:;'.'.-:;~:,;..;::',:;;;-~~:

, ,;::;~ I

.. ~,-.;._.::.-..:.': • .;...~..:=,:..;';.::-,:.

Page

3 of

5

DEPT. 36

MINUTES ENTERED 03/18/10

COUNTY CLERK.' ~.=;:;~,,,

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

"- ~--~'~-'--I

'; C'::'''O I ! I

P. MAPSTEAD, C.A.

Reporter

DATE: 03/18/10

DEPT. 36

---__)

HONORABLE

HONORABLE GREGORY W. ALARCON

JUDGE PRO TEM

ELECTRONIC RECORDING MONITOR

JUDGE B. GREGG

DEPUTY CLERK

--

Deputy Sheriff NONE

12 ;00 pm BC _

STEVEN _

VS

RACHEL _

Plaintiff Counsel

ET AL

NO APPEARANCES

ET AL

Defendant Counsel

discourtesy of attorney/Defendant Rachel .

See Declarations of Tri Q. Tran and Ray L. Flores, III attached to Opposition. However, this does not

demonstrate lImalice" in initiating the lawsuit.

liC';"ORML· Given the foregoing, Plaintiffs I Complaint for

Malicious Prosecution is ordered stricken in its "entirety. Defendants are entitled to recovery their ''::'''~-===-_'7-' "attorneys fees and costs pursuant to CCP

12:00 ~,., 425.16(c) (1).

fJA'fE. O.

1',; : ~"

NATURE OF PROCEEDINGS:

,J

CLERK'S CERTIFICATE OF MAILING/ NOTICE OF ENTRY OF ORDER

I, the below named Executive Officer/Clerk of the above-entitled court, do hereby certify that I am not a party to the cause herein, and that this date I served Notice of Entry of the above minute order of 3-18-2010 upon each party or counsel named below by depositing in the United States mail at the courthouse in Los Angeles, California, one copy of the

original entered herein in a separate sealed envelope for each, addressed as shown below with the postage thereon fully prepaid.

Date: 3-18-2010

_ ~,._ ... _J." .. -," '-~';-"_"'''-.''-'':'

'. r .•

John A. Clarke, Executive Officer/Clerk

By: B. GREGG, _

Page

4 of

MINUTES ENTERED 03/18/10

COUNTY CLERK"

5

DEPT. 36

SUPERIOR' COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

DATE: 03/18/10

HONORABLE

HONORABLE GREGORY W. ALARCON

JUDGE PRO TEM

JUDGE B. GREGG

ELECTRONIC RECORDING MONITOR

P. MAPSTEAD, C.A.

" ,~~, ~ .: ,:'D'---l . - ,', ~~ I

}

,- - --~ -- ... ..i

DEPT. 36

DEPUTY CLERK

Deputy Sheriff NONE

12:00 pm BC

STEVEN VS RACHEL ••••• ET AL

•••• ETAL

NATURE OF PROCEEDINGS:

Reporter

Plaintiff Counsel

NO APPEARANCES

Defendant Counsel

DATE:

llONORAf'l. 1

RAY L. FLORES II ESQ tlONOR,'.it".', 2141 ROSECRANS AVE., #1130

EL SEGUNDO, CA 90245

12: 00 'Or:

PAUL G. MURTAGH ESQ MURTAGH & ASSOCIATES

10 UNVIERSAL CITY PLAZA, 20TH FL UNIVERSAL CITY, CA 91608

Page

5 of

( . ~;·.:~i)

,

i

1

_, __ ._, w • .!

. "'I'\C; \IONITOR

• • ,,_ • '.~ . .• • ,"">

, .• 1:,.1

5

MINUTES ENTERED 03/18/10

COUNTY CLERK ~~,: ,-,;:,::

DEPT. 36