Hart v. Darwish – Second District Applies “Interim Adverse Judgment” Rule To Reject Malicious Prosecution Claim

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Hart v. Darwish reviewed a trial court’s determination on a motion for judgment on the pleadings that property owners had not maliciously prosecuted an unlawful detainer action: “To state a claim for malicious prosecution, a person must demonstrate that its adversary initiated a prior action (1) that was terminated in the person’s favor, (2) that the adversary brought the prior action ‘without probable cause’, and (3) that the adversary did so with ‘malice’.”

However, courts will look to what happened in the prior action for indicators that it was legally tenable. In fact, certain substantive rulings will give a near-conclusive effect to certain verdicts or rulings in the former plaintiff’s favor, indicating that there was probable cause in prosecuting the action, even though it ultimately terminated in the former defendant’s favor. This is known as the interim adverse judgment rule.

Here, the former defendants moved for judgment pursuant to Cal. Code Civ. Proc., §631.8, following the close of the landlord’s case-in-chief, and this motion was denied. Interpreting the effect of this denial, the Court of Appeal found that,

“By negative implication, the denial of a motion for judgment necessarily embodies a finding that the plaintiff has sustained its burden of proof, at least enough to continue with the trial and to permit the defendant to present contrary evidence. If a prior judicial finding that a plaintiff has presented triable issues of material fact or evidence of sufficient substantiality to support a verdict is enough to constitute proof that the plaintiff’s lawsuit is legally tenable, so too is a prior judicial finding that the plaintiff has presented sufficient evidence to sustain its burden of proof at the close of its case-in-chief.”

However, the tenants also contended that the “law of the case” doctrine dictated that the landlords lacked probable cause, because the landlords brought an anti-SLAPP motion in the malicious prosecution action, and the trial court denied that motion. An anti-SLAPP motion requires that certain lawsuits, which arise from the defendant’s “petitioning conduct” (like the filing of a lawsuit), must have minimal merit in order to proceed. If they do not, then the lawsuit is denied at a preliminary stage on the presumption that it is intended to chill the exercise of the right to petition rather than to redress legitimate grievances. Anti-SLAPP motions are essentially automatic in malicious prosecution actions, as they necessarily target the filing of a lawsuit as the basis of liability.

The Court of Appeal had previously upheld the lower court’s denial of the anti-SLAPP motion, however, it did not opine on the effect of the 631.8 motion at that time, so this denial did not justify application of the “law of the case” doctrine.