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Zucchet v. Galardi

California Court of Appeals, Fourth District, First Division

September 25, 2014

MICHAEL ZUCCHET, Plaintiff and Respondent,
v.
MICHAEL DEAN GALARDI, Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, No. 37-2012-00083128-CU-MC-CTL Judith F. Hayes, Judge.

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COUNSEL

Manning & Kass, Ellrod, Ramirez, Trester, Darin L. Wessel and John D. Marino for Defendant and Appellant.

Law Offices of Martin N. Buchanan, Martin N. Buchanan; Coughlan, Semmer, Fitch & Pott, R.J. Coughlan, Jr., Cathleen G. Fitch; Gomez Trial Attorneys and John H. Gomez for Plaintiff and Respondent.

OPINION

IRION, J.

Michael Dean Galardi appeals from the trial court's order denying his special motion to strike under the anti-SLAPP statute (Code Civ.

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Proc., § 425.16) in a malicious prosecution action brought against him by Michael Zucchet.[1] As we will explain, we conclude that the trial court erred in denying the special motion to strike, and we therefore reverse and remand with directions.

I

FACTUAL AND PROCEDURAL BACKGROUND

Galardi owned several strip clubs in Las Vegas and one in San Diego.[2] In 2000, the San Diego City Council enacted a "no-touch" ordinance, which banned touching between exotic dancers and patrons in strip clubs. Galardi hired Lance Malone as a lobbyist to try to obtain repeal of the no-touch ordinance.

Malone's lobbying activities included meeting with and making campaign contributions to members of the San Diego City Council (city council), including Zucchet, who was elected to the city council in November 2002.

In 2001, Malone made campaign contributions to city councilmember Ralph Inzunza (with money traceable to Galardi), and Malone and Inzunza thereafter discussed a strategy to repeal the no-touch ordinance.

As part of Inzunza's and Malone's plan to repeal the no-touch ordinance, Inzunza planned to draft a legislative proposal that would appear to tighten the overall restrictions on strip clubs but would also eliminate the no-touch ordinance. Inzunza and Malone arranged to have an ostensibly corrupt police officer (Detective Russ Bristol, who turned out to be an FBI informant) express public support for the plan, and to arrange for imaginary citizens to contact the city council to express interest in the laws governing adult entertainment businesses.

Inzunza advised Malone to contribute to Zucchet's campaign. Malone attempted to make a $6,750 contribution to Zucchet's campaign in 2001, but

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Zucchet returned the money because it was a political liability to be associated with Galardi's adult entertainment business. In 2002, Malone donated approximately $5,000 to Zucchet's campaign in checks that were not traceable to Galardi through one of Galardi's employees who ran a gym (and who also turned out to be an FBI informant).

In February 2003, Zucchet, Inzunza and Malone had a lunch meeting at which Malone explained to Zucchet his goal of repealing the no-touch ordinance. Zucchet told Malone he was not optimistic about the repeal because the police department was unlikely to support it. Malone tried to arrange for Zucchet to meet with Detective Bristol, who would express police support for the repeal, but Zucchet met instead with a police lieutenant who stated that the police supported the no-touch ordinance.

On April 16, 2003, Zucchet had a breakfast meeting with Malone. At the meeting, Malone talked about how he had contributed money during Zucchet's campaign. Zucchet agreed to "do the lifting at the committee level" of a plan that Malone had formulated as to how to get the repeal of the no-touch ordinance on the city council agenda. Specifically, Malone planned to have a concerned citizen appear before the relevant city council committee and ask to change the geographical distance requirements between adult businesses. Once the issue of adult entertainment businesses had been referred to the committee, Detective Bristol would appear to criticize the no-touch rule, and Inzunza would thereafter take action to repeal the no-touch ordinance.

The concerned citizen appeared before the city council on April 30, 2003, to request expansion of the distance requirements between adult businesses, and Zucchet participated in Malone's plan — as promised — by referring the matter for a report by the city attorney. In May 2003, Zucchet learned from the city attorney that the current distance requirements could not be expanded and he accordingly did not refer the matter to the committee.

On May 14, 2003, the government executed a series of search warrants, raiding city hall. In August 2003, a federal grand jury indictment was filed, naming Inzunza, Zucchet, Galardi, Malone and others as defendants in numerous counts of fraud and other crimes, all arising from the scheme to repeal the no-touch ordinance.

Galardi was indicted on 38 separate counts, which, together with another indictment filed in Las Vegas, carried the possibility of a 20-year sentence. In a September 2003 plea agreement, Galardi agreed to enter a guilty plea to a charge of conspiracy to commit wire fraud and agreed to cooperate with the government's ...


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