Supreme Court of California Justia
Docket No. S106503
Jarrow Formulas v. LaMarche

Filed 8/18/03

IN THE SUPREME COURT OF CALIFORNIA

JARROW FORMULAS, INC.,
Plaintiff and Appellant,
S106503
v.
Ct. App. 2/5 B146708
SANDRA HOGAN LAMARCHE et al.,
Los Angeles County
Defendants and Appellants.
Super. Ct. No. SC061964

The question presented is whether this malicious prosecution action is
exempt from scrutiny under Code of Civil Procedure section 425.16 (section
425.16), the anti-SLAPP1 statute. We conclude it is not. Accordingly, we affirm
the judgment of the Court of Appeal.
Background
Plaintiff Jarrow Formulas, Inc. (Jarrow), a manufacturer of vitamins and
nutritional supplements, engaged defendant Sandra Hogan LaMarche (individually
and doing business as The Network, hereafter LaMarche), a graphic designer, to
design labels for its products. A dispute arose about the ownership of certain
artwork, and Jarrow sued LaMarche for rescission and fraud. Represented by
defendant Mark Brutzkus, LaMarche cross-complained against Jarrow for slander

1
SLAPP is an acronym for “strategic lawsuit against public participation.”


of title and interference with economic advantage. Jarrow obtained a summary
judgment and dismissal of the cross-complaint. After a bench trial on Jarrow’s
complaint, the court entered judgment in favor of LaMarche.
Subsequently, Jarrow filed this malicious prosecution action against both
LaMarche and Brutzkus, 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 further held that both
LaMarche and Brutzkus had satisfied their initial burden under the anti-SLAPP
statute of proving that Jarrow’s malicious prosecution claim arose from acts in
furtherance of their speech and petition rights (§ 425.16, subd. (b)(1)) and that
Jarrow did not meet its responsive burden of establishing a probability of success
on the merits. Accordingly, the Court of Appeal directed the trial court to grant
the anti-SLAPP motion. We granted Jarrow’s petition for review.
Discussion
Section 425.16 provides, inter alia, that “A cause of action against a person
arising from any act of that person in furtherance of the person’s right of petition
or free speech under the United States or California Constitution in connection
with a public issue shall be subject to a special motion to strike, unless the court
determines that the plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)
Resolution of an anti-SLAPP motion “requires the court to engage in a two-
step process. First, the court decides whether the defendant has made a threshold
showing that the challenged cause of action is one arising from protected activity.
2
The moving defendant’s burden is to demonstrate that the act or acts of which the
plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition
or free speech under the United States or California Constitution in connection
with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court
finds such a showing has been made, it then determines whether the plaintiff has
demonstrated a probability of prevailing on the claim.” (Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) Since the trial court in
this case denied LaMarche’s anti-SLAPP motion on the ground that the statute’s
initial, “arising from,” prong does not encompass malicious prosecution claims, it
did not reach the statute’s second, “probability of prevailing,” prong. As noted, in
reversing the Court of Appeal ruled for defendants on both prongs.
A.
“Arising from” prong
Our primary task in construing a statute is to determine the Legislature’s
intent. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724.) Where
possible, “we follow the Legislature’s intent, as exhibited by the plain meaning of
the actual words of the law . . . .” (California Teachers Assn. v. Governing Bd. of
Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632.) Our anti-SLAPP
jurisprudence heretofore has scrupulously honored this principle.
In Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th
1106 (Briggs), when first construing the “arising from” prong of section 425.16,
we held on the basis of the statute’s plain language that a defendant moving
specially to strike a cause of action arising from a statement or writing made in
connection with an issue under consideration in a legally authorized official
proceeding need not separately demonstrate that the statement or writing concerns
an issue of public significance. (Briggs, supra, at p. 1109.) And in a trio of
opinions issued last year, we held that the plain language of the “arising from”
prong encompasses any action based on protected speech or petitioning activity as
3
defined in the statute (Navellier v. Sletten (2002) 29 Cal.4th 82, 89-95
(Navellier)), rejecting proposals that we judicially engraft the statute with
requirements that defendants moving thereunder also prove the suit was intended
to chill their speech (Equilon, supra, 29 Cal.4th at p. 58) or actually had that effect
(City of Cotati v. Cashman (2002) 29 Cal.4th 69, 75).
The Court of Appeal, in concluding that this malicious prosecution action
falls within the anti-SLAPP statute’s “arising from” prong, adhered to our plain
language approach. As we previously have observed, “plainly read, section
425.16 encompasses any cause of action against a person arising from any
statement or writing made in, or in connection with an issue under consideration or
review by, an official proceeding or body.” (Briggs, supra, 19 Cal.4th at p. 1113.)
Consistently with that observation, the Court of Appeal held that this action, which
is based on allegations that LaMarche and Brutzkus maliciously and without
probable cause brought and maintained a cross-complaint against Jarrow in the
course of a civil lawsuit, is subject to anti-SLAPP scrutiny.
The Court of Appeal grounded its conclusion in the anti-SLAPP statute’s
express definition of a “cause of action against a person arising from any act of
that person in furtherance of the person’s right of petition or free speech under the
United States or California Constitution in connection with a public issue.”
(§ 425.16, subd. (b)(1).) That definition, which is found in subdivision (e) of the
statute, places within section 425.16’s purview “any written . . . statement or
writing made before a . . . judicial proceeding,” “any written . . . statement or
writing made in connection with an issue under consideration or review by a . . .
judicial body,” and “any other conduct in furtherance of the exercise of the
constitutional right of petition.” (§ 425.16, subd. (e)(1), (2) & (4).) As the Court
of Appeal noted, LaMarche was sued for filing a cross-complaint in the former
municipal court and Brutzkus, her attorney, for written and oral statements he
4
made while acting as an advocate for LaMarche in the municipal court action.
Accordingly, the Court of Appeal reasoned, this action falls within the ambit of a
“cause of action against a person arising from any act . . . in furtherance of the
person’s right of petition” (§ 425.16, subd. (b)(1)), as statutorily defined.
As a plain language matter, the Court of Appeal unquestionably was
correct. Indeed, the point is not disputed. Jarrow concedes that, by its terms,
section 425.16 potentially may apply to every malicious prosecution action,
because every such action arises from an underlying lawsuit, or petition to the
judicial branch. By definition, a malicious prosecution suit alleges that the
defendant committed a tort by filing a lawsuit. (Pacific Gas & Electric Co. v.
Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1130-1131.)2 Accordingly, every
Court of Appeal that has addressed the question has concluded that malicious
prosecution causes of action fall within the purview of the anti-SLAPP statute.
(See, e.g., White v. Lieberman (2002) 103 Cal.App.4th 210, 220-221; Mattel, Inc.
v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1188; Chavez
v. Mendoza (2001) 94 Cal.App.4th 1083, 1087-1088.) Courts in our sister states
construing similar statues are in accord.3
Even while conceding the plain language point, however, Jarrow argues
there is no evidence the Legislature intended that section 425.16 apply to

2
That the underlying action was a cross-complaint rather than an original
complaint is not statutorily significant as, “[f]or purposes of this section,
‘complaint’ includes ‘cross-complaint . . . .’ ” (§ 425.16, subd. (h).)
3
See, e.g., Morse Brothers, Inc. v. Webster (Me. 2001) 772 A.2d 842, 849
(Maine’s anti-SLAPP statute applied to action for wrongful use of civil
proceedings); McLarnon v. Jokisch (2000) 431 Mass. 343, 347 [727 N.E.2d 813,
817]; see also Stetson, Reforming SLAPP Reform: New York’s Anti-SLAPP Statute
(1995) 70 N.Y.U. L.Rev. 1324, 1329.
5


malicious prosecution claims. Jarrow misunderstands the point and purpose of
plain language interpretation. “The plain language of the statute establishes what
was intended by the Legislature.” (People v. Statum (2002) 28 Cal.4th 682, 690.)
“ ‘If the language is clear and unambiguous there is no need for construction, nor
is it necessary to resort to [extrinsic] indicia of the intent of the Legislature . . . .’ ”
(People v. Talibdeen (2000) 27 Cal.4th 1151, 1154.) The anti-SLAPP statute is
not ambiguous with respect to whether its protection of “any act” furthering
protected rights encompasses suing for malicious prosecution. As we previously
have observed, “[n]othing in the statute itself categorically excludes any particular
type of action from its operation.” (Navellier, supra, 29 Cal.4th at p. 92.)
In addition to honoring the anti-SLAPP statute’s plain language, the Court
of Appeal’s construction adheres to the express statutory command that “this
section shall be construed broadly.” (§ 425.16, subd. (a).) It also accords with the
Legislature’s specific decision not to include malicious prosecution claims in the
statutory list of actions to which “[t]his section shall not apply.” (§ 425.16,
subd. (d) [exempting “any enforcement action brought in the name of the people
of the State of California by the Attorney General, district attorney, or city
attorney, acting as a public prosecutor”].) The Legislature clearly knows how to
create an exemption from the anti-SLAPP statute when it wishes to do so. It has
not done so for malicious prosecution claims.
“Where, as here, legislative intent is expressed in unambiguous terms, we
must treat the statutory language as conclusive.” (Equilon, supra, 29 Cal.4th at
p. 61.) Nevertheless, we may observe that available legislative history buttresses a
6
plain language construction.4 “Legislative history materials respecting the origins
of section 425.16 indicate the statute was intended broadly to protect, inter alia,
direct petitioning of the government and petition-related statements and writings—
that is, ‘any written or oral statement or writing made before a legislative,
executive, or judicial proceeding’ (§ 425.16, subd. (e)(1)) or ‘in connection with
an issue under consideration or review (id., subd. (e)(2)) by such.” (Briggs, supra,
19 Cal.4th at p. 1120, italics added.) And as we have noted, “the Legislature’s
intent consistently has been to protect all direct petitioning of governmental bodies
. . . including . . . courts . . . .” (Id. at p. 1121.)5
Jarrow also argues that the legislative history materials contain no evidence
the Legislature ever considered applying the statute to malicious prosecution
claims. Jarrow is mistaken. As amicus curiae the People point out, several
documents in the relevant legislative history materials indicate that when the
Legislature was considering, enacting, and amending anti-SLAPP legislation, it
was aware that malicious prosecution actions may be SLAPP’s.6

4
The anti-SLAPP statute was enacted in 1992 (Stats. 1992, ch. 726, § 2,
p. 3523) and has been amended three times (see Stats. 1993, ch. 1239, § 1,
p. 7106; Stats. 1997, ch. 271, § 1; Stats. 1999, ch. 960, § 1).
5
Our past pronouncements emphasize that the right of access to courts is an
aspect of the First Amendment right of petition. (See, e.g., Pacific Gas & Electric
Co. v. Bear Stearns & Co.
, supra, 50 Cal.3d at p. 1133 & fn. 15; California
Teachers Assn. v. State of California
(1999) 20 Cal.4th 327, 335, 339.)
6
See, e.g., statement of Phillip Berry, national vice president (legal), Sierra
Club, before the Judiciary Committee of the California Senate (May 8, 1990) page
3 (citing as an example of a SLAPP a lawsuit “for alleged malicious prosecution
because of the filing of a lis pendens”); Pritzker and Goldowitz, First Amendment
Project/California Anti-SLAPP Project, Guarding Against the Chill: A Survival
Guide for SLAPP Victims (1994) page 2 (listing as possible SLAPP’s suits for
“Malicious Prosecution or Abuse of Process”); Canan and Pring, Strategic
Lawsuits Against Public Participation
(1988) 35 Soc. Probs. 506, 511-513

(footnote continued on next page)
7


Notwithstanding the foregoing, Jarrow suggests that this court should craft
for malicious prosecution claims a categorical exemption from application of the
anti-SLAPP statute. Jarrow argues that applying section 425.16 to malicious
prosecution claims would have essentially the same effect of denying malicious
prosecution victims a remedy as would applying the litigation privilege (Civ.
Code, § 47, subd. (b)); hence, for the same reasons malicious prosecution claims
are exempt from application of the litigation privilege, we should exempt them
from the anti-SLAPP statute. We are not persuaded.
In support of its proposal, Jarrow invokes our declaration almost 50 years
ago, in Albertson v. Raboff (1956) 46 Cal.2d 375, 382 (Albertson), that “the fact
that a communication may be absolutely privileged for the purposes of a
defamation action does not prevent its being an element of an action for malicious
prosecution in a proper case. The policy of encouraging free access to the courts
that underlies the absolute privilege applicable in defamation actions is
outweighed by the policy of affording redress for individual wrongs when the
requirements of favorable termination, lack of probable cause, and malice are
satisfied.” As we more recently stated, “The only exception to application of [the
litigation privilege] to tort suits has been for malicious prosecution actions.”
(Silberg v. Anderson (1990) 50 Cal.3d 205, 216.)
Jarrow’s attempted analogy between the litigation privilege and the anti-
SLAPP statute is inapt. As the Court of Appeal noted, the litigation privilege is an
entirely different type of statute than section 425.16. The former enshrines a
substantive rule of law that grants absolute immunity from tort liability for

(footnote continued from previous page)
(documenting six types of SLAPP’s that “appeared most frequently” in the
authors’ study, including “judicial process abuse”).
8


communications made in relation to judicial proceedings (Rubin v. Green (1993) 4
Cal.4th 1187, 1193); the latter is a procedural device for screening out meritless
claims (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 718).
In language the Legislature first adopted in the 1870’s,7 the litigation
privilege states simply that “A privileged publication or broadcast is one made . . .
[i]n any . . . judicial proceeding . . . .” (Civ. Code, § 47, subd. (b).) Section
425.16, in contrast, comprises a detailed and specific statutory scheme. Since
section 425.16 neither states nor implies an exemption for malicious prosecution
claims, for us judicially to impose one as Jarrow urges “would violate the foremost
rule of statutory construction. When interpreting statutes, ‘we follow the
Legislature’s intent, as exhibited by the plain meaning of the actual words of the
law . . . . “This court has no power to rewrite the statute so as to make it conform
to a presumed intention which is not expressed.” ’ ” (City of Cotati v. Cashman,
supra, 29 Cal.4th at p. 75.)
Nor does this case present the same all-or-nothing problem as did Albertson
and its progeny. We do not face in this case, as we did in Albertson, the logical
necessity of choosing between the “free access to the courts” (Albertson, supra, 46
Cal.2d at p. 382) protected by the litigation privilege and the “redress for
individual wrongs” (ibid.) afforded by the malicious prosecution tort. (See ibid.,
citing Veeder, Absolute Immunity in Defamation: Judicial Proceedings (1909) 9
Colum. L.Rev. 463, 470.) Unlike the “absolute bar to relief created by the
litigation privilege” (Manufacturers Life Ins. Co. v. Superior Court (1995) 10
Cal.4th 257, 283), the anti-SLAPP statute requires only “a minimum level of legal

7
Code Amendments 1873-1874, chapter 612, section 11, page 184; see
Comment, Absolute Privilege and California Civil Code Section 47(2): A Need for
Consistency
(1982) 14 Pacific L.J. 105, 108.
9


sufficiency and triability” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438,
fn. 5).
In asserting that the anti-SLAPP statute, if applied, would have the effect of
barring malicious prosecution claims, Jarrow “fall[s] prey . . . to the fallacy that
the anti-SLAPP statute allows a defendant to escape the consequences of wrongful
conduct . . . .” (Navellier, supra, 29 Cal.4th at p. 93.) In fact, “the anti-SLAPP
statute neither constitutes—nor enables courts to effect—any kind of ‘immunity’
. . . . When a ‘ “complaint is both legally sufficient and supported by a sufficient
prima facie showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited” ’ [citation], it is not subject to being stricken
as a SLAPP.” (Ibid.)
In sum, the litigation privilege “poses a clear bar” (Ribas v. Clark (1985) 38
Cal.3d 355, 364) to actions based on statements made in litigation. In view of that
privilege’s “absolute nature” (Silberg v. Anderson, supra, 50 Cal.3d at p. 209), it
was essential in Albertson that we gloss the statutory language memorializing it in
light of “the policy of affording redress” for malicious prosecution, lest that
remedial tort be altogether eliminated. (See Albertson, supra, 46 Cal.2d at p. 382.)
No such imperative applies here. The anti-SLAPP statute “does not bar a plaintiff
from litigating an action that arises out of the defendant’s free speech or
petitioning” (Navellier, supra, 29 Cal.4th at p. 93); rather, “it subjects to potential
dismissal only those actions in which the plaintiff cannot ‘state[] and substantiate[]
a legally sufficient claim.’ ” (Ibid.)
In another vein, Jarrow argues that the Legislature cannot have meant to
subject malicious prosecution claims to anti-SLAPP scrutiny, because malicious
prosecution is “a unique, carefully circumscribed tort with its own pre-screening”
mechanisms. By “pre-screening” mechanisms, Jarrow apparently refers to the
elements of the malicious prosecution tort itself, and in particular to the element of
10
lack of probable cause. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47
Cal.3d 863, 871 (Sheldon Appel Co.).) That malicious prosecution has elements
and that a plaintiff must prove these in order to recover, of course, hardly makes
malicious prosecution unique among torts. Nor does the malicious prosecution
tort’s utility in combating meritless and harassing litigation preclude the
possibility that a particular malicious prosecution action may itself be meritless or
designed to harass. To the contrary, spurious malicious prosecution suits may,
like others, “chill the valid exercise of the constitutional rights of freedom of
speech and petition for the redress of grievances.” (§ 425.16, subd. (a).)
Jarrow’s “pre-screening” argument is logically flawed. We cannot infer
from any generalized overlap in the stated legislative aims underlying section
425.16 (see id., subd. (a)) and the policies we have recognized as supporting the
existence of the malicious prosecution tort (see Albertson, supra, 46 Cal.2d at
p. 382) that the Legislature could not have discerned a role for the anti-SLAPP
mechanism in the malicious prosecution context. Considered as devices for
screening out meritless suits, the anti-SLAPP device and the lack-of-probable-
cause element of malicious prosecution are perhaps similarly focused, but they are
not duplicates. A malicious prosecution defendant who in fact had probable cause
in the underlying action may, depending on the circumstances of the particular
case, be able to obtain dismissal on that ground only after protracted and costly
litigation. By contrast, section 425.16 was “based on the need to ‘screen out
meritless cases at an early stage.’ ” (College Hospital Inc. v. Superior Court,
supra, 8 Cal.4th at p. 718; see generally Sheldon Appel Co., supra, 47 Cal.3d at
p. 873.) Moreover, because lack of probable cause is not the only element of a
malicious prosecution claim (favorable termination of the prior action and malice
also being necessary; see Sheldon Appel Co., supra, at p. 871), such a claim may
lack merit even when the plaintiff can prove lack of probable cause.
11
In sum, contrary to Jarrow’s implication, plausible reasons for the
Legislature’s having equipped malicious prosecution defendants with both
weapons—the probable cause defense and a potential anti-SLAPP motion—
against meritless attack can easily be discerned. Ultimately it appears that, in
choosing comprehensive language for the anti-SLAPP statute’s “arising from”
prong, “ ‘[t]he Legislature recognized that “all kinds of claims could achieve the
objective of a SLAPP suit.” ’ ” (Navellier, supra, 29 Cal.4th at pp. 92-93.) Under
the remedial scheme the Legislature crafted, therefore, “ ‘the nature or form of the
action is not what is critical but rather that it is against a person who has exercised
certain rights.’ ” (Equilon, supra, 29 Cal.4th at p. 60.)
In petitioning for review, Jarrow also argued that, because filing or
maintaining an action without probable cause does not constitute a valid “act of
that person in furtherance of the person’s right of petition or free speech under the
United States or California Constitution” (§ 425.16, subd. (b)(1)), malicious
prosecution claims, which by definition are based on filing or maintaining actions
without probable cause, should not be eligible for anti-SLAPP protection. We
already have, in another context, considered and rejected Jarrow’s “validity”
argument, noting it “ ‘confuses the threshold question of whether the SLAPP
statute [potentially] applies with the question whether [an opposing plaintiff] has
established a probability of success on the merits.’ ” (Navellier, supra, 29 Cal.4th
at p. 94.)
Contrary to Jarrow’s suggestion, that malicious prosecution is an action
based on alleged abusive activity does not entail that simply by alleging malicious
prosecution a plaintiff can exempt a lawsuit from anti-SLAPP scrutiny. “ ‘The
Legislature did not intend that in order to invoke the special motion to strike the
defendant must first establish [its] actions are constitutionally protected under the
First Amendment as a matter of law. If this were the case then the [secondary]
12
inquiry as to whether the plaintiff has established a probability of success would
be superfluous.’ ” (Navellier, supra, 29 Cal.4th at pp. 94-95.)8
Finally, Jarrow argues that affirmance will result in elimination of the
malicious prosecution tort, thereby giving a “green light to parties and counsel” to
bring meritless actions and rendering unscrupulous litigators and attorneys
“exempt from any accountability for their acts.” Not so. Neither section 425.16
itself nor anything in our anti-SLAPP jurisprudence diminishes the viability of
meritorious malicious prosecution claims that may be articulated against such
persons.
“The Legislature . . . has provided, and California courts have recognized,
substantive and procedural limitations that protect plaintiffs against overbroad
application of the anti-SLAPP mechanism.” (Briggs, supra, 19 Cal.4th at
pp. 1122-1123.) “Courts deciding anti-SLAPP motions, for example, are
empowered to mitigate their impact by ordering, where appropriate, ‘that specified
discovery be conducted notwithstanding’ the motion’s pendency. [Citation.] And
if ‘the court finds that a special motion to strike is frivolous or is solely intended to

8
Jarrow also asserts, without explanation, that the anti-SLAPP statute
comprises a “clear denial of constitutional due process.” Perhaps Jarrow refers to
its query in petitioning for review: “Is the malicious prosecution plaintiff’s
constitutional right to a jury trial improperly burdened by the anti-SLAPP
statute?” In briefing the merits, Jarrow does not take up the jury trial point. In
any event, we previously have considered and rejected the suggestion that the anti-
SLAPP statute unduly burdens plaintiffs’ access to courts. “As we recognized in
Rosenthal v. Great Western Fin. Securities Corp. [(1996) 14 Cal.4th 394], 412,
‘This court and the Courts of Appeal, noting the potential deprivation of jury trial
that might result were [section 425.16 and similar] statutes construed to require the
plaintiff first to prove the specified claim to the trial court, have instead read the
statutes as requiring the court to determine only if the plaintiff has stated and
substantiated a legally sufficient claim.” (Briggs, supra, 19 Cal.4th at p. 1123.)
13


cause unnecessary delay, the court shall award costs and reasonable attorney’s fees
to a plaintiff prevailing on the motion.’ ” (Equilon, supra, 29 Cal.4th at p. 66.)
Thus, as we repeatedly have observed, the Legislature’s detailed anti-SLAPP
scheme “ensur[es] that claims with the requisite minimal merit may proceed.”
(Navellier, supra, 29 Cal.4th at p. 94.)9
For all these reasons, we decline to create a categorical exemption from the
anti-SLAPP statute for malicious prosecution causes of action. Accordingly, we
hold that this action is not exempt from anti-SLAPP scrutiny merely because it is
one for malicious prosecution. If on reflection the Legislature desires to create an
exemption for malicious prosecution claims, it may easily do so. (See Briggs,
supra, 19 Cal.4th at p. 1123 [same with respect to “public interest” limitation].)
B.
“Probability of prevailing” prong
As mentioned earlier, if a court ruling on an anti-SLAPP motion concludes
the challenged cause of action arises from protected petitioning, it then
“determines whether the plaintiff has demonstrated a probability of prevailing on
the claim.” (Equilon, supra, 29 Cal.4th at p. 67.) To satisfy this prong, the

9
Jarrow argues that applying the anti-SLAPP statute to malicious
prosecution actions will particularly prejudice malicious prosecution plaintiffs
because such plaintiffs will generally need discovery to establish the malice
element of malicious prosecution, and discovery is available under section 425.16
only on a showing of good cause. (§ 425.16, subd. (g) [when anti-SLAPP motion
is pending, court “may order that specified discovery be conducted”].) It is not
our role, of course, generally to pronounce on the wisdom of legislative policy in
this area. We may nevertheless observe that Jarrow does not demonstrate that it
was prejudiced by a lack of discovery in this case or that the trial court abused its
discretion by failing to order discovery. The Court of Appeal concluded, as a
matter of law based on undisputed evidence, that the underlying action did not
lack probable cause. That conclusion is not implicated by our review of the
question whether section 425.16 potentially encompasses malicious prosecution
causes of action.
14


plaintiff must “state[] and substantiate[] a legally sufficient claim.” (Rosenthal v.
Great Western Fin. Securities, supra, 14 Cal.4th at p. 412.) “Put another way, the
plaintiff ‘must demonstrate that the complaint is both legally sufficient and
supported by a sufficient prima facie showing of facts to sustain a favorable
judgment if the evidence submitted by the plaintiff is credited.’ ” (Wilson v.
Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 (Wilson).)10
The Court of Appeal here ruled that Jarrow had not met its burden under
the “probability of prevailing,” or merits, prong of the anti-SLAPP statute.11 In
petitioning for review, Jarrow specified the question whether, assuming the anti-
SLAPP statute applies, a malicious prosecution claim predicated, as this one is, on
an underlying suit that was terminated on summary judgment with a finding of
insufficient evidence should be deemed, as a matter of law, to satisfy the statute’s
merits prong. Jarrow points out that the minute order memorializing the trial

10
“In deciding the question of potential merit, the trial court considers the
pleadings and evidentiary submissions of both the plaintiff and the defendant
[citation]; though the court does not weigh the credibility or comparative probative
strength of competing evidence, it should grant the motion if, as a matter of law,
the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to
establish evidentiary support for the claim.” (Wilson, supra, 28 Cal.4th at p. 821,
citing § 425.16, subd. (b)(2).)
11
Specifically, the Court of Appeal determined that it was objectively
reasonable for LaMarche and Brutzkus to conclude that plaintiff on or around
October or November 1996 had contacted a prospective customer of LaMarche for
the purpose of destroying her relationship with that person’s business. The court
concluded this made the trade libel claim legally tenable at the time the cross-
complaint was filed in March 1997. The Court of Appeal thus had no occasion to
decide, and expressly refrained from deciding, whether defendants had acted
maliciously. (See Sheldon Appel Co., supra, 47 Cal.3d at p. 875 [when “the court
determines that there was probable cause to institute the prior action, the malicious
prosecution action fails, whether or not there is evidence that the prior suit was
maliciously motivated”].)
15


court’s disposal of LaMarche’s cross-complaint states that “no competent
evidence” of harmful activity by Jarrow or damages to LaMarche’s business had
been presented.12 According to Jarrow, this “summary judgment ruling with its
findings alone” should be sufficient, as a matter of law, to satisfy the anti-SLAPP
statute’s merits prong. We disagree. The entry of summary judgment for the
defense on an underlying claim on grounds of insufficient evidence does not
establish as a matter of law that the litigant necessarily can “state[] and
substantiate[]” (Rosenthal v. Great Western Fin. Securities, supra, 14 Cal.4th at
p. 412) a subsequent malicious prosecution claim.
First, contrary to Jarrow’s assertion, defense summary judgment on the
underlying claim does not establish lack of probable cause as a matter of law.
“ ‘Counsel and their clients have a right to present issues that are arguably correct,
even if it is extremely unlikely that they will win . . . .’ ” (Sheldon Appel Co.,
supra, 47 Cal.3d at p. 885, quoting In re Marriage of Flaherty (1982) 31 Cal.3d
637, 650.) Accordingly, there is probable cause if, at the time the claim was filed,
“any reasonable attorney would have thought the claim tenable.” (Sheldon Appel
Co., supra, at p. 886.) Plainly, a claim that appears “arguably correct” or
“tenable” when filed with the court may nevertheless fail, as LaMarche’s did, for
reasons having to do with the sufficiency of the evidence actually adduced as the

12
More fully, the minute order stated there was “no competent evidence
adduced that cross-defendant Jarrow Formulas, Inc. did anything that was a cause
of any damage to cross-complainant Sandra Hogan LaMarche, DBA [T]he
Network” or “that cross-defendant disparaged cross-complainant to Merical
Distributors or that cross-defendant did anything that caused cross-complainant to
fail to obtain any business from Merical or anyone else.” The minute order also
stated that Jarrow would recover no attorney fees or costs from LaMarche.
16


litigation unfolds.13 As defendants point out, every case litigated to a conclusion
has a losing party, but that does not mean the losing position was not arguably
meritorious when it was pled. (Wilson, supra, 28 Cal.4th at p. 824.) And just as
an action that ultimately proves nonmeritorious may have been brought with
probable cause, successfully defending a lawsuit does not establish that the suit
was brought without probable cause. (See id. at pp. 819-820; Roberts v. Sentry
Life Insurance, supra, 76 Cal.App.4th at p. 383.)
Second, obtaining summary judgment for the defense on the underlying
claim does not necessarily establish the malice element of a subsequent malicious
prosecution claim. Jarrow asserts it does in this case, “because, even after an
opportunity for discovery, no competent evidence was adduced to support the
underlying claim.” The trial court’s “no competent evidence” finding was not
quite so sweeping. (See fn. 12, ante.) But even assuming Jarrow characterizes the
record correctly, the asserted conclusion does not follow. “Merely because the
prior action lacked legal tenability, as measured objectively . . . without more,
would not logically or reasonably permit the inference that such lack of probable
cause was accompanied by the actor’s subjective malicious state of mind.”

13
“Probable cause may be present even where a suit lacks merit. Favorable
termination of the suit often establishes lack of merit, yet the plaintiff in a
malicious prosecution action must separately show lack of probable cause.
Reasonable lawyers can differ, some seeing as meritless suits which others believe
have merit, and some seeing as totally and completely without merit suits which
others see as only marginally meritless. Suits which all reasonable lawyers agree
totally lack merit—that is, those which lack probable cause—are the least
meritorious of all meritless suits. Only this subgroup of meritless suits present[s]
no probable cause.” (Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375,
382, citing In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650 [meritless appeal
not by definition frivolous].)
17


(Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 498, citing Sheldon
Appel Co., supra, 47 Cal.3d at pp. 885-886.)
We therefore reject, as did the Court of Appeal, Jarrow’s suggestion that its
having obtained summary judgment on the cross-complaint in the underlying
litigation establishes as a matter of law, for the purposes of section 425.16, the
merits of its malicious prosecution claim. Nor does the record afford any other
basis for our gainsaying the Court of Appeal’s conclusion on this point.
Disposition
For the foregoing reasons, the judgment of the Court of Appeal is affirmed.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
BROWN, J.
MORENO, J.

18


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Jarrow Formulas, Inc. v. LaMarche
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 97 Cal.App.4th 1
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S106503
Date Filed: August 18, 2003
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Lorna Parnell

__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of Neal T. Wiener, Neal T. Wiener; Patton Boggs, Steven M. Schneebaum and Kathleen J.
Lester for Plaintiff and Appellant.

Law Offices of Michael J. Piuze, Michael J. Piuze; Manning & Marder, Kass, Ellrod, Ramirez and David J.
Wilson for Michael J. Piuze as Amicus Curiae on behalf of Plaintiff and Appellant.

Justin M. Jacobs, Jr., as Amicus Curiae on behalf of Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Robie & Matthai, Edith R. Matthai, Kyle Kveton, Natalie A. Kouyoumdjian, Marta A. Alcumbrac;
Stephan, Oringher, Richman & Theodora, Harry W. R. Chamberlain II, Robert M. Dato and Brian P.
Barrow for Defendants and Appellants.

Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Theodora Berger,
Assistant Attorney General, Craig C. Thompson, Edward G. Weil and Susan S. Fiering, Deputy Attorneys
General, for People of the State of California, ex rel. Bill Lockyer, Attorney General, as Amicus Curiae on
behalf of Defendants and Appellants.

Law Offices of James J. Moneer and James J. Moneer for Law Office of Herbert Hafif, Herbert Hafif, Greg
K. Hafif, Cynthia D. Hafif, Aitken, Aitken & Cohn, Wyle Aitken, Darren Aitken, James J. Moneer and the
Law Offices of James J. Moneer as Amici Curiae on behalf of Defendants and Appellants.


1


Counsel who argued in Supreme Court (not intended for publication with opinion):

Neal T. Wiener
Law Offices of Neal T. Wiener
9100 Wilshire Boulevard, 7th Floor, West Tower
Beverly Hills, CA 90212-3415
(310) 276-2889

Edith R. Matthai
Robie & Matthai
500 South Grand Avenue, 15th Floor
Los Angeles, CA 90071-2609
(213) 624-3062

2


Opinion Information
Date:Docket Number:
Mon, 08/18/2003S106503

Parties
1Jarrow Formulas, Inc. (Plaintiff and Appellant)
Represented by Neal Thomas Wiener
Attorney at Law
9100 Wilshire Blvd, 7th Floor West
Beverly Hills, CA

2Jarrow Formulas, Inc. (Plaintiff and Appellant)
Represented by Steven M. Schneebaum
Patton Boggs, LLP
2550 "M" Street N.W.
Washington, DC

3Lamarche, Sandra Hogan (Defendant and Appellant)
Represented by Edith R. Matthai
Robie & Mathai
500 South Grand Avenue, 15th Floor
Los Angeles, CA

4Lamarche, Sandra Hogan (Defendant and Appellant)
Represented by Harry W. R. Chamberlain
Stephan Oringher, Richman & Theodora, P.C.
535 Anton Blvd., Suite 800
Costa Mesa, CA

5Brutzkus, Mark (Defendant and Appellant)
Represented by Brian P. Barrow
Stephan Oringher Richman & Theodora, P.C.
535 Anton Blvd., Suite 800
Costa Mesa, CA

6Brutzkus, Mark (Defendant and Appellant)
Represented by Harry W. R. Chamberlain
Stephan Oringher Richman & Theodora, P.C.
535 Anton Blvd., Suite 800
Costa Mesa, CA

7Brutzkus, Mark (Defendant and Appellant)
Represented by Edith R. Matthai
Robie & Mathai
500 South Grand Avenue, 15th Floor
Los Angeles, CA

8Law Office Of Herbert Hafif (Amicus curiae)
Represented by James J. Moneer
LAW OFFICES OF JAMES J. MONEER
1901 1st Ave 1FL
San Diego, CA

9Law Office Of James J. Moneer (Amicus curiae)
Represented by James J. Moneer
LAW OFFICES OF JAMES J. MONEER
1901 1st Ave 1FL
San Diego, CA

10Jacobs, Justin M. (Amicus curiae)
Represented by Justin Manning Jacobs
Attorney at Law
1164 Chestnut St
Menlo Park, CA

11Piuze, Michael J. (Amicus curiae)
Represented by Michael Joseph Piuze
Attorney at Law
11755 Wilshire Blvd #1170
Los Angeles, CA

12Piuze, Michael J. (Amicus curiae)
Represented by David J. Wilson
Manning & Marder et al
660 S Figueroa St 23FL
Los Angeles, CA


Disposition
Aug 18 2003Opinion: Affirmed

Dockets
May 6 2002Petition for review filed
  appellant Jarrow Formulas, Inc
May 7 2002Received Court of Appeal record
  1 doghouse
May 29 2002Answer to petition for review filed
  Defendants/Appellants Sandra Hogan La Marche individually and Mark Brutzkus (40k/Cal.Overnight)
May 31 2002Received letter from:
  Neal T. Wiener [Appellant Jarrow Formulas, Inc.] dated 5/30/2002 urging grant.
Jun 12 2002Review Granted/briefing deferred (Rule 29.3) - civil case
  Further action in this matter is deferred pending consideration and disposition of a related issue in Equilon v. Consumer Cause, S094877, Navellier v. Sletten, S095000, and City of Cotati v. Cashman, S099999 (see Cal. Rules of Court, rule 29.2(c)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 29.3, is deferred pending further order of the court. Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Jun 27 2002Certification of interested entities or persons filed
  by Neal T. Wienner, counsel of record for Jarrow Formulas (plaintiff/appellant)
Sep 12 2002Received letter from:
  Counsel for appellant asking the court for permission to brief the impact that the lead cases recently decided have on their case.
Oct 16 2002Briefing ordered
  The petition for review in this matter was granted on June 12, 2002, and further action was deferred pending consideration and disposition of related issues in Equilon Enterprises v. Consumer Cause Inc. (2002) 29 Cal.4th 53, City of Cotati v. Cashman (2002) 29 Cal.4th 69, and Navellier v. Sletten (2002) 29 Cal.4th 82, or pending further order of this court. At that time, the submission of briefing also was deferred pending further order of the court. Petitioner is now directed to serve and file a Brief on the Merits on or before November 15, 2002. Additional briefing is to be served in a timely fashion. (See rule 29.3(a), Cal. Rules of Court.)
Oct 17 2002Letter sent to:
  all parties enclosing a copy of the order filed 10/16/2002 re briefing, along with the "Certification of Interested Entities or Persons" form.
Oct 21 2002Request for extension of time filed
  (faxed) from Attorney Wiener on behalf of appellant for a 3-week extension of time to 12/9/2002.
Oct 22 2002Certification of interested entities or persons filed
  by Neal T. Wiener, counsel for Jarrow Formulas, Inc. (plaintiff/appellant)
Oct 22 2002Extension of time granted
  On application of plaintiff and appellant Jarrow Formulas, Inc. and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including December 9, 2002.
Dec 12 2002Opening brief on the merits filed
  appellant Jarrow Formulas, Inc., [ timely filed under 40K-certified mail ]
Dec 13 2002Received:
  Errata to Appellant's Opening Brief on the Merits
Dec 24 2002Request for extension of time filed
  answer brief/merits to 2-14-03
Dec 24 2002Received:
  (fax from L. A. Office) E.O.T. by defendant/appellant (La Marche et al) for a 30-day extension to 2/14/2003, to file their answer brief/merits.
Dec 26 2002Opposition filed
  to extension of time>>appellant Jarrow Formulas, Inc.
Dec 30 2002Extension of time granted
  On application of appellants La Marche et al. and good cause appearing, it is ordered that the time to serve and file the Answer Brief on the Merits is extended to and including February 14, 2003.
Feb 18 2003Answer brief on the merits filed
  by aplts LaMarche, The Network, Brutzkus. (timely per CRC 40k)
Feb 26 2003Application to appear as counsel pro hac vice (granted case)
  by Steven M. Schneebaum, Esq. as co-counsel for plaintiff and appellant (Jarow Formulas, Inc.)
Mar 5 2003Application to appear as counsel pro hac vice granted
  The application of Steven M. Schneebaum, Patton Boggs LLP, of Washington, D. C. for admission to appear as counsel pro hac vice on behalf of Plaintiff and Appellant Jarrow Formulas, Inc. is hereby granted. (See Cal. Rules of Court, rule 983.)
Mar 6 2003Request for extension of time filed
  (faxed copy) by appellant for an additional two weeks, to and incuding 3/24/2003, to file the reply brief on the merits
Mar 7 2003Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the Reply Brief on the Merits is extended to and including March 17, 2003.
Mar 7 2003Note:
 
Mar 7 2003Note:
  Add'l CA/2 record being sent overnight.
Mar 20 2003Reply brief filed (case fully briefed)
  appellant Jarrow Formulas, Inc. [40k]
Mar 20 2003Request for judicial notice filed (in non-AA proceeding)
  appellant Jarrow Formulas, Inc. [submitted concurrently w/ reply brief/merits]
Mar 21 2003Received:
  Errata for request for judicial notice of appellant, Jarrow Formulas, Inc.
Mar 25 2003Amicus Curiae Brief filed by:
  People of the State of California, ex rel. Bill Lockyer, Attorney General of the State of California, in support of defendants and appellants Sandra Hogan LaMarche and Mark Brutzkus
Mar 25 2003Request for judicial notice filed (in non-AA proceeding)
  by People of the State of California, ex rel. Bill Lockyer, Attorney General
Mar 28 2003Received:
 
Apr 7 2003Received application to file amicus curiae brief; with brief
  by the Law Offices of Herbert Hafif, Law Offices of James Moneer et al in support of resp.
Apr 10 2003Permission to file amicus curiae brief granted
  The application of the Law Office of Herbert Hafif, APC and the Law Office of James J. Moneer for permission to file amicus curiae brief in support of defendants and appellants La Marche and Brutzkus is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 10 2003Amicus Curiae Brief filed by:
  Law Office of Herbert Hafif and the Law Office of James J. Moneer in support of defendants and appellants LaMarche and Brutzkus
Apr 15 2003Response to amicus curiae brief filed
  appellant Jarrow Formulas, Inc's to a.c. brief of Attorney General 40k
Apr 17 2003Request for judicial notice filed (in non-AA proceeding)
  Plaintiff/Appellant's Supplement Request to Take Judicial Notice Re Attorney General's Amicus Brief
Apr 17 2003Received:
  Plaintiff/Appellant's Errata to Response to Amicus Curiae Brief of Attorney General
Apr 22 2003Received application to file amicus curiae brief; with brief
  Justin M. Jacobs, Jr. in support of plaintiff/appellant (Jarrrow Formulas)
Apr 23 2003Received application to file Amicus Curiae Brief
  by Attorney Michael J. Piuze in support of appellant (Jarrow)
Apr 30 2003Permission to file amicus curiae brief granted
  by Michael J. Piuze in support of plaintiff and appellant. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Apr 30 2003Amicus Curiae Brief filed by:
  Michael J. Piuze in suport of plaintiff and appellant.
Apr 30 2003Permission to file amicus curiae brief granted
  The application of Justin M. jacobs,Jr. for permission to file an amicus curiae brief in support of plaintiff and appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 30 2003Amicus Curiae Brief filed by:
  Justin M. Jacobs, Jr. in support of plaintiff and appellant.
Apr 30 2003Case ordered on calendar
  6-4-03, 1:30pm, L.A.
May 1 2003Response to amicus curiae brief filed
  apepllant Jarrow Formulas, Inc. answering A/C brief of Law Office of Herbert Hafif
May 9 2003Filed:
  request of pltf/aplt Jarrow Formulas to reschedule oral argument.
May 16 2003Received letter from:
  Justin M. Jacobs, dated 5-16
May 21 2003Response to amicus curiae brief filed
  counsel for appellant Jarrow Formulas, Inc. to a/c brief of Justin M. Jacobs, Jr. 40(k)
May 21 2003Request for judicial notice granted
  The "Motion for Judicial Notice of Amicus Curiae People of the State of California" (filed March 25, 2003) is granted. "Plaintiff's Request to Take Judicial Notice" (filed March 20, 2003) and "Plaintiff's Supplemental Request to Take Judicial Notice re Attorney General's Amicus Brief" (filed April 17, 2003) are denied. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1963.)
May 21 2003Response to amicus curiae brief filed
  by appellants to amicus brief of Michael J. Piuze (40n)
May 21 2003Response to amicus curiae brief filed
  appellants to amicus curiae brief of Justin M. Jacobs, Jr. (40n)
May 28 2003Received application to file amicus curiae brief; with brief
  Terry Hutton
Jun 4 2003Cause argued and submitted
 
Aug 18 2003Opinion filed: Judgment affirmed in full
  Majority Opinion By Werdegar, J. -- joined by George, C.J., Kennard, Baxter, Chin, Brown & Moreno, JJ.
Sep 19 2003Remittitur issued (civil case)
  Certified copies sent to Second District, Division Five
Sep 24 2003Received:
  Receipt for Remittitur from Second District Court of Appeal, Division 5, via L. A. Office.

Briefs
Dec 12 2002Opening brief on the merits filed
 
Feb 18 2003Answer brief on the merits filed
 
Mar 20 2003Reply brief filed (case fully briefed)
 
Mar 25 2003Amicus Curiae Brief filed by:
 
Apr 10 2003Amicus Curiae Brief filed by:
 
Apr 15 2003Response to amicus curiae brief filed
 
Apr 30 2003Amicus Curiae Brief filed by:
 
Apr 30 2003Amicus Curiae Brief filed by:
 
May 1 2003Response to amicus curiae brief filed
 
May 21 2003Response to amicus curiae brief filed
 
May 21 2003Response to amicus curiae brief filed
 
May 21 2003Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website