Li v. Simpson, Thatcher & Bartlettt













Filed 11/16/10 Li v. Simpson, Thatcher & Bartlettt CA6





NOT TO BE PUBLISHED IN OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.






IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JIMMY LI, Plaintiff and Respondent, v. SIMPSON THACHER & BARTLETT, et al. Defendants and Appellants.

H034948 (Santa Clara County Super. Ct. No. CV141528)

I. INTRODUCTION
Appellants Simpson Thacher & Bartlett, a law firm, and George M. Newcombe, a Simpson Thacher & Bartlett partner (collectively, Simpson Thacher) represented PrediWave Corporation (PrediWave) in a lawsuit filed in Los Angeles County Superior Court (the Los Angeles action) against respondent Jimmy Li (Li). In the Los Angeles action, PrediWave alleged that Li was liable for breach of fiduciary duty and other wrongdoing in his capacity as an outside director of PrediWave. After the Los Angeles action was voluntarily dismissed, Li brought the instant malicious prosecution action against Simpson Thacher in Santa Clara County Superior Court.
Simpson Thacher responded to Li's malicious prosecution action by filing a special motion to strike the complaint under the anti-SLAPP statute, Code of Civil Procedure section 425.16,[1] which provides that a cause of action arising from constitutionally protecting speech or petitioning activity is subject to a special motion to strike unless the plaintiff establishes a probability of prevailing on the claim. (§425.16, subd. (b)(1).) The trial court denied the motion, finding that Li had shown that he had a probability of prevailing on his malicious prosecution claim because Simpson Thacher lacked probable cause for initiating and maintaining the Los Angeles action. Specifically, the trial court found that Li's evidence was sufficient to show that Li had acted in furtherance of his fiduciary duty and his conduct was protected by the business judgment rule (Corp. Code, § 309) and the litigation privilege (Civ. Code, § 47, subd. (b).)
On appeal, Simpson Thacher argues that there was probable cause to initiate and continue prosecuting the Los Angeles action because PrediWave's claims against Li were legally tenable. For the reasons stated below, we determine that Li met his burden to show a probability that he will prevail on his malicious prosecution claim because Simpson Thacher continued to prosecute the Los Angeles action after discovering that a cause of action for breach of fiduciary duty against Li lacked probable cause. Therefore, we will affirm the order denying Simpson Thacher's special motion to strike the complaint.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Background Facts
During the time period relevant to this matter, PrediWave was a California company based in Fremont that developed technology products to enable the delivery of â€