A suit for malicious prosecution seeks to recover damages incurred as a result of a previous criminal or civil lawsuit which was unsuccessful, and was brought without probable cause, and for a malicious purpose (such as, to harass or annoy, rather than to seek a judicial determination of the claim).
Sound familiar?
Although not all malicious prosecution claims are meritless, if you’ve been sued for malicious prosecution, you may well have been SLAPPed. The anti-SLAPP law automatically applies to every malicious prosecution claim (because, by definition, it is based on the filing and/or maintaining of a lawsuit in a prior proceeding), meaning only meritorious malicious prosecution claims can survive an anti-SLAPP motion.
The case below is one example of a malicious prosecution SLAPP decided by the California Supreme Court:
Jarrow Formulas, Inc. v. LaMarche
California Supreme Court, 2003 (review of Los Angeles Co. Superior Court)
31 Cal.4th 728, 3 Cal.Rptr.3d 636
Plaintiff, Jarrow Formulas, sued defendant, artist LaMarche, for rescission and fraud; LaMarche then cross-complained against Jarrow for slander of title and interference with economic advantage. The cross-complaint was dismissed, and the court entered judgment in favor of LaMarche after a bench trial on plaintiff’s underlying lawsuit.
As the Court explains in its opinion, Jarrow then filed a malicious prosecution against defendant and her counsel, “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 of Appeal further ruled that Jarrow had failed to show that the cross-complaint had been brought without probable cause, and therefore could not establish a probability of prevailing on its malicious prosecution claim. The Supreme Court affirmed the Court of Appeal’s decision.
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