EmeraldBay Financial v. Stojsavljevic
In this action for malicious prosecution brought by Emerald Bay Financial, Inc. (Emerald) and Financial Freedom Loans, Inc. (FFL) (together plaintiffs), Suppa, Trucchi and Henein, LLP (ST&H) and attorneys Jerry Michael Suppa, Teresa Trucchi, Gregory Highnote and Stephen Shaw (collectively attorney defendants), and their clients, Petar Stojsavljevic (Petar),[1]and Judith Stojsavljevic (Judith), appeal from an order denying their special motion to strike the complaint under Code of Civil Procedure[2]section 425.16, the anti-SLAPP (strategic lawsuit against public participation) statute. They assert the court erred in denying their motion because (1) the action was not pursued "by or at the direction of" certain defendants; (2) there was probable cause to instigate and pursue the underlying action; (3) the underlying action was not initiated or pursued for a malicious purpose; (4) plaintiffs have not suffered any damages; and (5) plaintiffs did not produce sufficient evidence to negate Judith and Petar's advice of counsel affirmative defense. We conclude the court erred in not granting Petar and Judith's motion to strike as plaintiffs cannot show a reasonable probability of success on their malicious prosecution action against them as they cannot produce sufficient evidence to negate Judith and Petar's advice of counsel defense. Court also conclude the court did not err in denying the attorney defendants' motion to strike as plaintiffs have demonstrated a reasonable probability of success on their malicious prosecution claims directed against them.
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