Date: 05-18-2006

Case Style: Timothy Paulus v. Bob Lynch Ford, Inc., et al.

Case Number: H028629

Judge: Duffy

Court: California Court of Appeal Sixth Appellate District on appeal from the Superior Court, Santa Clara County

Plaintiff's Attorney:

Sean Absher and Jim Brennan of Stradling, Yocca, Carlson & Rauth, San Francisco, California

Defendant's Attorney:

Tim Davis and Damien Lillis, The Davis Law Firm, San Francisco, California

Description:

In an earlier lawsuit brought in 2003 (the prior suit), Timothy Paulus was sued by his competitor in an unsuccessful attempt to prevent him from developing a Ford automobile dealership in Morgan Hill, California. That prior suit was brought under Business and Professions Code section 17200 et seq. (the unfair competition law (UCL))1 by an established, Gilroy-based Ford automobile dealership and its president/shareholder (Bob Lynch Ford, Inc. and Scott Lynch, respectively, and hereafter, collectively, Lynch).2 After filing a series of demurrers, Paulus ultimately prevailed in the prior suit after the court sustained his demurrer without leave to amend.

In September 2004, Paulus brought this action against Lynch for claims arising out of the prior suit, including a cause of action for malicious prosecution. Lynch brought a special motion to strike Paulus's complaint under the anti-SLAPP (strategic lawsuits against public participation) statute, Code of Civil Procedure section 425.16.3 After granting the motion, the court awarded Lynch $40,000 and $1,819.96 in attorney fees and costs, respectively.

Paulus appeals from these two orders. He claims (among other things) that the motion to strike should have been denied because he presented a prima facie case of malicious prosecution - including showing that Lynch lacked probable cause to bring the prior suit and that Lynch prosecuted it with malice. We conclude that Paulus did not meet his burden under section 425.16 of demonstrating the probability that he would prevail on the merits of any of his claims. Specifically, Paulus did not show that Lynch lacked probable cause to bring the prior suit - an essential element of a malicious prosecution claim - because (1) malicious prosecution is a disfavored tort that is maintainable only if the underlying suit was one that no reasonable attorney would believe to be objectively tenable, (2) the UCL is a broad statute intended to protect both consumers and competitors against business practices that are unlawful, unfair or fraudulent, and (3) no authority expressly precluded the bringing of Lynch's UCL claim under the circumstances alleged in the prior suit. In addition, Paulus forfeited any challenge to the granting of the motion to strike his claims for abuse of process and intentional interference with contractual relations; in any event, he made no prima facie showing below in support of these claims.

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Click the case caption above for the full text of the court's opinion.

Outcome: We therefore find no error. Accordingly, we affirm the order granting the anti- SLAPP motion to strike. We also affirm the order awarding attorney fees and costs to Lynch.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None