Procedural Posture

Procedural Posture

Plaintiff landlord sued defendants, a former tenant and her lawyers, for malicious prosecution in an underlying suit that involved 45 named plaintiffs and 18 causes of action. The Superior Court of San Diego County, California, denied a motion to strike by the tenant and the lawyers that initiated the action and granted a motion to strike by lawyers that became involved later. The tenant, the first set of lawyers, and the landlord appealed.

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The reviewing court concluded that, for purposes of Code Civ. Proc., § 425.16, the anti-strategic lawsuit against public participation (anti-SLAPP) statute, the landlord demonstrated a probability of prevailing. The evidence permitted the inference that the tenant’s voluntary dismissal was motivated by a recognition that her claims of mold contamination and personal injuries were meritless. The tenant’s interrogatory responses indicated that she incurred no damages other than mental and emotional distress, and the originating lawyers then filed a statement of damages asserting $ 2,000 in property damage and $ 50,000 in punitive damages. The second set of lawyers either knew or should have known of the significant deficiencies in the claims at the time they associated into the case, and there was no evidence that they took immediate steps to dismiss the meritless claims. Support for a finding of malicious intent included evidence that the proceedings were initiated in order to force a settlement and the originating lawyers’ shotgun approach. There was sufficient evidence in the record of damages based on attorney fees for defending the prior action.


The court affirmed the trial court’s order denying the anti-SLAPP motion by the tenant and the first set of lawyers. The court reversed the order granting the anti-SLAPP motions by the second set of lawyers and reversed a related award of attorney fees and/or costs.


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