If You Defended Quickly, Bringing This Might Open You Up to SLAPP Fees,
Fourth District, Division 3 States In an Interesting Footnote.
Although not dealing directly with attorney’s fees, a recent unpublished Fourth District, Division 3 decision should give all litigators pause when thinking about filing a malicious prosecution action after defending against an action that went away on a pretty quick time string.
“Malicious prosecution has long been a disfavored cause of action. (Sheldon Appell Co. v. Albert & Oliker (1987) 47 Cal.3d 863, 872.) The anti-SLAPP statute makes it more so. The statute essentially requires parties to have admissible evidence supporting their claim before they file the complaint, because they may need to present the evidence in opposition to an anti-SLAPP motion before they conduct discovery. And because lack of probable cause is an element of malicious prosecution, parties need to have admissible evidence, without the benefit of discovery, showing the other side actually knew the underlying action was legally untenable. We wonder how often this kind of evidence is readily available. Thus, parties must weigh carefully the availability of this kind of evidence against the amount of damages incurred in defending the underlying action. Sometimes, this calculation will weigh in favor of asserting a malicious prosecution claim. In other cases — many other cases, we imagine — it will not. When the underlying action has been defeated quickly and relatively inexpensively, one wonders if a malicious prosecution action is worth the risk of losing to an anti-SLAPP motion and paying attorney fees and costs to the moving party. (Code Civ. Proc., § 425.16, subd. (c).)”
This language should provoke thoughtful debate when one is considering whether to bring a malicious prosecution action in some circumstances.