APPEAL from an order of the Superior Court of Los Angeles County, Abraham Kahn, Judge. Super. Ct. No. BC456920
The opinion of the court was delivered by: Mosk, J.
CERTIFIED FOR PUBLICATION
Defendant and appellant Morse Mehrban (Mehrban) appeals from the trial court's order denying his special motion to strike filed under the anti-SLAPP (strategic lawsuit against public participation) statute, Code of Civil Procedure section 425.16.*fn1 Mehrban contends that the statutory requirements were met in that the complaint is one arising from protected activity and plaintiff and respondent JSJ Limited Partnership (JSJ) did not demonstrate a probability of prevailing on its causes of action for abuse of process and malicious prosecution. We hold that the litigation privilege bars the claim for abuse of process and that the voluntary dismissal of a claim after a court held that the claim was barred by the doctrine of res judicata was not a favorable termination for purposes of malicious prosecution. Because the motion should have been granted, we reverse and remand the matter to the trial court to grant the motion and to determine whether Mehrban is entitled to an award of attorney fees.
In 2008, Alfredo Garcia filed a complaint against JSJ asserting one cause of action entitled "Violation of Civil Code sections 54 and 54.1" (2008 Lawsuit). Mehrban was Garcia's attorney in that lawsuit and filed the complaint on Garcia's behalf. In that complaint, Garcia alleged that JSJ was the owner and lessor of a parcel of real property on which a restaurant was operated. Garcia alleged that he "could not walk and was wheel-chair bound," and when he patronized the restaurant on five occasions in January and February, 2008, he was "unable to use the restroom paper towel and toilet seat cover dispensers because they were mounted too far above the floor, and unable to use the toilet because it failed to provide him two grab (support) bars." Garcia sought "$1,000 for each violation of Civil Code sections 54 and 54.1, [and] attorney fees and costs . . . ." Following a court trial, the trial court entered judgment in favor of JSJ.
In 2009, Garcia, with Mehrban as his counsel, filed a second complaint against JSJ (2009 Lawsuit). In that case, Garcia alleged two causes of action, entitled "Violation of Civil Code Section 51" and "Violation of Civil Code Sections 54 and 54.1," respectively. Garcia again alleged that JSJ was the owner of a parcel of real property on which a restaurant parking lot was located and Garcia "could not walk and was wheel-chair bound." In this complaint, Garcia alleged that "during the preceding year, [JSJ] failed and refused . . . to provide [him] . . . a designated van-accessible handicap parking spot with a 96-inch-wide access aisle . . . ," and "[Garcia] would have patronized said facility on at least 4 occasions during that period but for the fact that he knew he would be denied full and equal access to the parking lot." Garcia sought "$16,000 in damages, permanent injunctive relief, attorney's fees, [and] costs . . . ."
The trial court sustained JSJ's demurrer to the complaint on the ground that the doctrine of res judicata barred Garcia's claim and granted Garcia 10 days leave to amend the complaint, stating, "[Garcia] acknowledges that both [the 2008 Lawsuit and the 2009 Lawsuit] assert violations of the ADA [Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq.] based on architectural barriers. . . . [Garcia's] argument that the difference between the architectural barriers (inability to use the restroom versus inability to use the parking lot) bars the application of res judicata has no merit . . . . Nor can [Garcia] elude the effect of res judicata by arguing that res judicata 'is not a bar to claims that arise after the initial complaint is filed.' In his opposition [Garcia] asserts that his attempts to use the parking lot occurred in September 2008, after the visits he made in January and February 2008 when he was unable to use the bathroom. However, nowhere in the complaint does [Garcia] allege the date or dates on which he attempted to visit the restaurant; there is no allegation that he attempted to visit the restaurant in September 2008 but was unable to do so due to lack of a handicap parking spot. [¶] Further, based on [Garcia's] assertion in his opposition that he attempted to visit the restaurant in September 2008, the pleading appears to be a sham since [Garcia] alleged in the first lawsuit that he in fact visited the restaurant in January and February 2008. These purported facts give rise to the reasonable inference that the lack of a handicap parking spot did not deter [Garcia] from visiting the restaurant in January and February 2008." Garcia did not amend the complaint and filed a request for dismissal as to the entire action without prejudice.
In 2011, JSJ filed a verified complaint against Mehrban*fn2
and Garcia*fn3 alleging causes of action for
malicious prosecution and abuse of process. JSJ alleged that (1) the
trial court sustained a demurrer to the complaint in the 2009 Lawsuit,
granting Garcia 10 days leave to amend, but Garcia did not amend the
complaint and dismissed the entire action without prejudice, (2) in
sustaining the demurrer the trial court stated, as noted above, "the
pleading appears to be a sham," (3) the complaints in the 2008 Lawsuit
and 2009 Lawsuit "directly contradict each other," and (4) JSJ "files
this lawsuit . . . against . . . [Mehrban] for contriving the 2nd
lawsuit for retribution because JSJ prevailed in the first lawsuit."
In its claim for malicious prosecution, JSJ alleged that Mehrban knew or should have known the complaint in the 2009 Lawsuit had no merit, Mehrban caused the complaint to be filed without probable cause, and the complaint was filed for "retribution and . . . to require [JSJ] to spend his [sic] money unnecessarily." In its claim for abuse of process, JSJ alleged that Mehrban and Garcia "claimed [in the 2009 Lawsuit] they could not patronize JSJ's restaurant, even though a few weeks before they were testifying in the [2008 Lawsuit] that they entered and patronized the restaurant. [¶] [Mehrban and Garcia] filed a voluntary dismissal that was in response to the Court's ruling on the Demurrer and written statement that the subject Complaint was a sham pleading. [¶] [Mehrban and Garcia] acted without probable cause in initiating the prosecution of the [2009 Lawsuit], in that they did not honestly, reasonable, [sic] and in good faith believe JSJ to be liable therein because they knew that GARCIA had not even gone to the restaurant and was simply filing the lawsuit as retribution for prevailing on the prior lawsuit. [¶] . . . [Mehrban and Garcia] filed the lawsuit solely out of a malicious motivation to cause harm to JSJ . . . ."
Mehrban filed a special motion to strike the lawsuit under section 425.16 (anti-SLAPP motion), contending that the complaint he filed on behalf of Garcia arose from a protected activity. He contended that JSJ could not show a probability of prevailing on its abuse of process claim because the complaint in the 2009 Lawsuit was privileged under the litigation privilege doctrine. Mehrban argued that JSJ could not show a probability of prevailing on its malicious prosecution claim because: (1) the 2009 Lawsuit was not terminated in JSJ's favor on the merits, (2) the complaint in the 2009 Lawsuit was instituted by Mehrban with probable cause in that the lawsuit was not barred by the doctrine of res judicata, it was not a "sham," and the facts alleged had been transmitted to Mehrban by Garcia and verified by Garcia under penalty of perjury, and (3) Mehrban did not institute the 2009 Lawsuit with malice. In support of Mehrban's anti-SLAPP motion, Garcia declared that because there were problems arranging for legal ...