Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County. Jacqueline A. Connor, Judge, Los Angeles County Super. Ct. No. SC085580
Law Offices of Joseph Daniel Davis, Joseph Daniel Davis; and Charlotte E. Costan for Plaintiff and Appellant.
Nemecek & Cole, Jonathan B. Cole, Michael W. Feenberg and Susan S. Baker for Defendants and Respondents.
MALLANO, P. J.
In a prior lawsuit, Gina F., through her attorneys Stephen L. Belgum and the Law Offices of Stephen L. Belgum (Belgum), sued Eugene L. for damages for allegedly infecting her with the human papilloma virus (HPV), a sexually transmitted disease. Eugene obtained a final judgment in his favor (Super. Ct. L.A. County, 2004, No. GC031240), and then brought the instant action against Gina and Belgum for malicious prosecution. The trial court granted Belgum’s special motion to strike under Code of Civil Procedure section 425.16 (section 425.16), and Eugene appealed. We reverse the order granting the special motion to strike because the evidence showed a prima facie case on all elements of a malicious prosecution claim against Belgum.
BACKGROUND
Resolution of a special motion to strike requires the court to address two issues: (1) whether the defendant has made a threshold showing that the challenged cause of action is one arising from activity protected under section 425.16 and (2) whether the plaintiff has demonstrated a probability of prevailing on the claim. (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1397 (Sycamore Ridge Apartments).)
Section 425.16 provides in pertinent part: “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.” (Id., subd. (b)(1).)
As the parties agree that Gina’s filing of her underlying action was an exercise of her right of petition and constitutes an activity subject to section 425.16 (Sycamore Ridge Apartments, supra, 157 Cal.App.4th at p. 1398), the only issue on the merits of the motion is whether Eugene demonstrated a probability of prevailing on his malicious prosecution action. In independently reviewing an order granting a motion to strike under section 425.16, we consider “‘the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based,’” and we “‘accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.’” (Soukup, supra, 39 Cal.4th at p. 269, fn. 3.) We do not weigh credibility nor compare the weight of the evidence. (Ibid.) And because the trial court declined to rule on Belgum’s evidentiary objections to portions of Eugene’s evidence, and Belgum did not press for a ruling, the objections are deemed to be forfeited. (Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 710.)
The following evidence as to the underlying action was admitted in connection with the special motion to strike.
A. Gina’s Underlying Lawsuit
In February 2003, Gina, through her attorney Belgum, filed an action against Eugene for damages for personal injuries, alleging that Eugene infected Gina with HPV as a result of their sexual relationship during February and March 2002. Eugene admitted that he learned that he had a condition known as “genital warts” in 1993, but it was only after March 6, 2002, that he learned that the warts were a manifestation of HPV. Thus, Eugene never denied that he had HPV, but he challenged Gina’s allegation that it was he who had infected her with HPV. In January 2004, Eugene filed a summary judgment motion on the ground that Gina could not establish the element of causation. The motion was heard and granted in April 2004. Eugene’s motion was supported primarily by the declaration of his medical expert in obstetrics and gynecology, Dr. Amy Rosenman, who set out a background on HPV as well as a summary of Gina’s sexual activity and medical history.
According to Rosenman, HPV refers to a group of over 100 viruses, including over 20 types that are sexually transmitted and can cause genital or venereal warts. The wart-causing viruses can also be present as a skin infection which is not visible to the naked eye. In women, HPV can also cause cervical precancerous changes known as cervical dysplasia. HPV is the most prevalent sexually transmitted infection in the world, occurring in up to 75 percent of sexually active adults. Although HPV infection is widespread, few people know they are infected because only 25 percent of those infected will develop warts. The time between exposure and the appearance of warts is often from three to six months, but latency periods of many months and even decades have been reported. Epidemiological studies have demonstrated that people become infected shortly after they become sexually active. Multiple sex partners are a major factor in determining whether a person becomes infected with HPV.
Rosenman set out Gina’s prior sexual activity as gleaned from her deposition, and portions of her deposition testimony were attached as an exhibit to Rosenman’s declaration. Gina became sexually active at age 18 in 1993. From 1993 to 2001, Gina had sexual relations with five men, whose sexual histories and exposure to HPV were unknown. Gina admitted that during the period from 1994 to 2001 she had two boyfriends, and because she was taking birth control pills, Gina had sexual intercourse with them without condoms. In 1997, Gina also had unprotected sex on one occasion with another man, Joe F.
Starting in 1995, Gina had regular Pap tests, Rosenman recounted. Between 1995 and 2001, all of the Pap tests were within normal limits, but they do not test for the presence of HPV and do not indicate whether Gina was exposed to HPV before she began having sexual intercourse with Eugene in February 2002. The FDA first approved the test for HPV in March 1999. Gina was first tested for HPV in March 2002, and the results of the test were reported as positive. Gina’s Pap tests after March 2002 were all within normal limits and showed no evidence of HPV-related changes. Because Gina’s Pap tests were normal, Rosenman opined that Gina, like most women with HPV, will not develop cervical cancer.
Rosenman concluded that, based on the “near universal prevalence of HPV among sexually active adults in the United States, it is not possible to attribute [Gina’s] HPV exposure to [Eugene] in the absence of a thorough and reliable exposure history of [Gina] and her sexual partners (and their sexual partners) prior to her involvement with [Eugene]. Because [Gina’s] sexual activity started in 1993, it is not feasible to recreate an accurate picture of the exposure histories of her previous partners at this late date. Thus, we are left with nothing more than surmise and speculation in trying to determine whether [Eugene] or some prior partner first infected Gina . . . with HPV. In my considered opinion, it cannot be proven to a reasonable degree of medical probability . . . that [Eugene] infected Gina . . . with HPV in early 2002.”
In opposition to Eugene’s summary judgment motion, Gina did not proffer any declarations or affidavits. Rather, she sought a continuance “in order to submit more complete opposition” but did not explain what that “opposition” entailed. Nor did Gina assert that facts essential to justify opposition existed but could not then be presented. Gina’s opposition primarily addressed the issue of whether she could recover damages for fear of developing cancer even if she had not yet sustained any physical injury from exposure to HPV.
The court granted summary judgment in favor of Eugene on the ground that “[t]he undisputed evidence establishes that to a reasonable medical probability, [Gina] will be unable to establish that she contracted HPV through her relationship with [Eugene]. . . . Without such evidence, she cannot establish the causation element of any of her Causes of Action.”
Gina filed a notice of appeal from the summary judgment, but Eugene moved to dismiss the appeal as untimely. Gina did not oppose the motion to dismiss the appeal, and her appeal was dismissed. A remittitur issued on December 30, 2004. (B177813.)
B. Eugene’s Malicious Prosecution Action
In May 2005 Eugene filed and served this action for malicious prosecution against both Gina and Belgum. Belgum filed an answer in June 2005. In October 2005, Eugene filed a first amended complaint (complaint) containing two causes of action, labeled “negligence” and “intentional tort.” Belgum answered the complaint in January 2006. At some time before January 2007, a trial date was set for May 25, 2007.
1. Ex Parte Application for Leave to File Special Motion to Strike
On January 16, 2007, Belgum filed an ex parte application for leave to file a special motion to strike more than 60 days after the service of the complaint. Belgum argued that his interests and those of Gina were aligned until she was granted leave to file a cross-complaint for malpractice and indemnity against him in December 2006. Because of the previous alignment of interests and the attorney-client privilege, Belgum claimed he was unable to reveal or rely upon communications between Gina and himself to justify his conduct in the underlying action, and he refrained from filing a special motion to strike earlier in the case; Gina’s cross-complaint allegedly obviated the need for Belgum to protect their communications. According to Belgum’s recently retained counsel, minimal discovery had been undertaken and the trial date would likely have to be continued to accommodate discovery on the cross-complaint. The ex parte application was heard and granted on January 16, 2007.
2. Special Motion to Strike
In his special motion to strike, Belgum argued that the negligence claim was not viable because he owed no duty to Eugene as a matter of law. With respect to the malicious prosecution claim, Belgum argued that he had probable cause to bring and maintain the action on Gina’s behalf and that he acted without malice. As set out in Belgum’s declaration, he met with Gina in early 2003 and she told him the following: Gina met Eugene in early February 2002; Gina was “‘swept off her feet’” by Eugene, a wealthy businessman, and they began a sexual relationship on February 13, 2002; they discussed their respective sexual histories and Eugene assured Gina that he had been tested for sexually transmitted diseases and was disease-free; on March 5, 2002, Eugene told Gina that he was infected with HPV and that over the past nine years he had had several warts removed from his genitals; Gina was shocked and dismayed because they had engaged in unprotected sexual intercourse; Gina terminated the relationship with Eugene, and a few weeks later she tested positive for the presence of an aggressive strain of HPV; before March 2002, she had never tested positive for HPV; Gina told Belgum that she “only had six or seven other sexual partners, and none of those individuals had ever presented with a diagnosis of HPV.”
After hearing Gina’s story, Belgum made an appointment for her to see a gynecologist, Dr. Terre Osterkamp, to confirm the HPV diagnosis. Belgum also consulted with an expert, who told him that with appropriate testing and samples, it might be technologically possible to tie the particular strain of HPV carried by a person to the donor who had infected that person, so it might be possible to tie Eugene to Gina’s particular strain of HPV. Belgum concluded that Gina’s claim against Eugene was viable and filed a complaint for damages on her behalf on February 5, 2003. In responding to discovery propounded by Eugene, Belgum asked Gina to provide the names of all of her sexual partners of the previous five years. Gina did not provide the name of Joe F. to Belgum, and responses which did not mention Joe F. were prepared and sent to Eugene in August 2003. Thereafter, during Gina’s deposition in December 2003, she identified Joe F. as another individual with whom she had unprotected sexual relations in 1997. Belgum recognized Joe F.’s name as associated with the “Girls Gone Wild” franchise. Because Gina previously had not told Belgum about her relationship with Joe F., his name was not included in Gina’s verified discovery responses provided to Eugene.
Belgum also declared that before he was retained by Gina, he had not met nor heard of Eugene. He filed the complaint in the underlying action “for the exclusive purpose of obtaining just compensation for [Gina] for the physical and emotional injuries she had suffered as a result of [Eugene’s] conduct. At the time the claims were filed, I harbored absolutely no personal ill will or malice toward [Eugene], who I did not know.”
In opposition to the special motion to strike, Eugene maintained that the motion was untimely under subdivision (f) of section 425.16 and should be denied on that basis. With respect to the merits of the motion, Eugene proffered Rosenman’s declaration, discussed above, as well as other pleadings and rulings in Gina’s underlying action. Also offered in opposition were the declarations of Eugene and his attorney, Joseph Davis.
Eugene argued that Belgum lacked probable cause to bring the suit on behalf of Gina because there is no evidence that before filing suit he had done medical research on HPV, consulted with an expert, obtained Gina’s complete medical records, or taken an adequate sexual history of Gina and her sexual partners. Eugene also contended that at some time during the 16 months that Gina’s underlying action was pending in the trial court, and at the latest at the time of Gina’s deposition in December 2003, “it became apparent that the claim was untenable and [Eugene] shouldn’t have been troubled to file what turned out to be an unopposed summary judgment motion in order to be relieved of the expense and anxiety of this case.” Eugene maintained that malice could be inferred from Belgum’s attempt to settle the underlying case for $1 million, which amount had no relation to the merits of the case, and from Belgum’s half-hearted opposition to Eugene’s summary judgment motion.
Davis declared that after Belgum filed the underlying action on behalf of Gina, Davis called Belgum and told him that there was no way that anyone could reasonably establish that Eugene had infected Gina with HPV after only three instances of sexual intercourse, given Gina’s sexual history. Davis also accused Belgum of doing no medical or scientific research on the virus. Belgum did not deny not having done any medical or scientific research on HPV and conceded that he did not have a medical doctor able to attribute Gina’s HPV to Eugene. But Belgum told Davis that “[Gina] was very mad at [Eugene] and wanted to punish him as well as to extract some sort of monetary settlement because [Eugene] was allegedly a ‘wealthy Westside businessman.’” Belgum also said that Eugene was the last one to be with Gina before she was diagnosed. Davis replied that given her sexual history, it was highly likely that Gina was exposed to HPV before she met Eugene and that there was no scientific basis for singling out Eugene as the cause of Gina’s first exposure to HPV.
Davis pointed out that Belgum implied in his declaration that he had the benefit of Osterkamp’s consultation before he filed suit on February 5, 2003, but Osterkamp testified in her deposition that she did not see Gina until March 21, 2003. Osterkamp acknowledged that she never told Gina who had infected her with HPV. In her deposition, Gina also admitted that no doctor ever told her that her positive test for HPV resulted from her relationship with Eugene.
According to Gina’s medical records, her tests for HPV showed a positive result in March 2002, two negative results in July 2002, a negative result in August 2002, and a positive result in April 2003. Gina also admitted that during the summer of 2003 she twice tested negative for HPV. According to her medical records from August 2003, Dr. Jonathan Berek told Gina that she was likely infected with HPV but “‘had probably developed an immune response and is likely not a carrier any longer.’”
Eugene declared that Gina told him that she had been sexually active since she was 18, had been intimate with 12 men before meeting him, and had engaged in numerous acts of unprotected sexual intercourse with them. Gina told him that she had a sexual relationship for several months with Joe F., the creator of the “Girls Gone Wild” videos. According to Eugene, Joe F. had been in the news frequently and boasted about having sexual relations with “hundreds, if not thousands, of girls.”
Eugene also disputed Belgum’s account of his discussion with Gina about his “genital wart.” Eugene maintained that he had not been tested for HPV before dating Gina, but he had what his doctor described as a “genital wart.” Eugene told Gina that he had recently had a wart removed from his genitals. It was Gina who told Eugene that the wart was HPV and that two of her girlfriends had it. After they stopped dating in March 2002, Eugene next spoke with Gina by telephone in January 2003. Gina admitted to him that she then showed no signs of HPV, but that she had engaged an attorney. Eugene was shocked and asked her how she could consider suing him if she had no disease and after she had had prior sexual affairs with many other men. Gina said that her “‘lawyer says that none of that matters since [Eugene] was the last one she had sex with before she was diagnosed with HPV.’” Eugene said that it was not fair, and Gina responded that he “could easily afford to settle the case and [then she] hung up.” Shortly after the complaint was filed, Eugene’s attorney received a demand to settle the case for $1 million.
Although Belgum filed objections to portions of the declarations of Eugene and Davis, the trial court did not rule on the objections. Belgum does not raise the issue of his objections on appeal, so any such objections are forfeited.
After a hearing, the court granted Belgum’s anti-SLAPP motion. In its ruling, the court determined that Eugene provided no authority to support a negligence cause of action against Belgum. With respect to the malicious prosecution cause of action, the court concluded that “nothing has been provided by [Eugene] to establish a probability of prevailing on the malicious prosecution claim. . . . [¶] Here there is no dispute that [Eugene] has HPV, contracted HPV long before he met [Gina], [Gina] tested positive for HPV after having engaged in sexual intercourse with [Eugene], and that [Eugene] may have infected [Gina] with HPV. [Gina’s] sexual history from 1993 through 2002 was explored and there was no evidence that any of her other sexual partners were infected with HPV. However, based on [Gina’s] testimony, there was no reliable evidence as to her sexual history or whether any of those partners had been exposed to HPV. In the declaration of Dr. Amy Rosenman . . ., she concluded that, based on the universal prevalence of HPV among sexually active adults in the United States, it could not be proven to a reasonable degree of medical probability that [Eugene] infected [Gina] with HPV in early 2002. . . . The fact that medical evidence was ultimately presented by [Eugene] to negate the causation element of [Gina’s] claim does not mean that there was no probable cause to institute the action based upon the facts known to Belgum at that time.”
Eugene appealed from the order granting Belgum’s special motion to strike. In his opening brief, Eugene expressly abandons the negligence claim, which he asserts was inserted into the amended complaint at Belgum’s request. We need not further address the negligence theory.
DISCUSSION
“To establish a cause of action for malicious prosecution, a plaintiff must demonstrate that the prior action (1) was initiated by or at the direction of the defendant and legally terminated in the plaintiff’s favor, (2) was brought without probable cause, and (3) was initiated with malice.” (Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 740.)
Neither in the trial court nor on appeal did Belgum challenge Eugene’s assertion that the first element, favorable termination, is established. The parties disagree with respect to the elements of probable cause and malice.
A. Probable Cause
“An action is deemed to have been pursued without probable cause if it was not legally tenable when viewed in an objective manner as of the time the action was initiated or while it was being prosecuted. The court must ‘determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable.’ [Citation.] ‘The resolution of that question of law calls for the application of an objective standard to the facts on which the defendant acted. [Citation.]’ [Citation.] The test the court is to apply is whether ‘any reasonable attorney would have thought the claim tenable . . . .’ [Citation.]” (Sycamore Ridge Apartments, supra, 157 Cal.App.4th at p. 1402.) “[T]he objective tenability of the prior action is a question of law to be determined by the court . . . .” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 884.)
“A lack of probable cause may arise from an insufficiency in the facts or the law.” (Puryear v. Golden Bear Ins. Co. (1998) 66 Cal.App.4th 1188, 1195 (Puryear).) Where the issue is the insufficiency in the facts known to the defendant, as here, “probable cause requires evidence sufficient to prevail in the action or at least information reasonably warranting an inference there is such evidence.” (Ibid.) Thus, probable cause is lacking “when a prospective plaintiff and counsel do not have evidence sufficient to uphold a favorable judgment or information affording an inference that such evidence can be obtained for trial.” (Ibid.)
The court in Puryear rejected the “less stringent” majority rule for probable cause in civil actions set out in Restatement Second of Torts section 675, which provides that probable cause exists if one “‘reasonably believes in the existence of the facts upon which the claim is based, and . . . [¶] (a) correctly or reasonably believes that under those facts the claim may be valid under the applicable law . . . .’” (Puryear, supra, 66 Cal.App.4th at p. 1196.) “The Restatement rule is predicated on a dilemma to prosecute or perish that is obviated by an unusual feature of California procedural law. That feature is the unique broad scope of our fictitious defendant practice under Code of Civil Procedure section 474. [Citation.] [¶] Under Code of Civil Procedure section 474, a plaintiff who lacks sufficient evidence to prove a cause of action, or information warranting an inference that such evidence will be obtained, can ‘otherwise effectively enforce its rights’ by use of a Doe allegation . . . . Since the reason for the Restatement rule does not apply to this case, neither does the rule.” (Puryear, supra, 66 Cal.App.4th at p. 1197.)
Here, Eugene made a prima facie showing that Belgum did not possess and could not reasonably obtain facts on the element of causation sufficient to sustain a judgment in Gina’s favor.
“The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402–403 (Jones).)
Eugene established a prima facie case that Belgum lacked probable cause to bring the underlying action because Belgum possessed insufficient information establishing within a reasonable medical probability that Eugene, as opposed to one of Gina’s other sexual partners, was the person who infected Gina with HPV. The evidence showed that Belgum consulted with two people before filing the underlying complaint — (1) Gina and (2) an unidentified expert. Gina told Belgum the following: She had had sexual relations with six or seven other men before Eugene but none of the others had a diagnosis of HPV; before March 2002, she had not tested positive for HPV; early in their relationship, Eugene told Gina that he had been tested for sexually transmitted diseases and he was disease-free, but later, after they had had unprotected sex, Eugene admitted to her that he was infected with HPV; a few weeks after terminating her relationship with Eugene, Gina tested positive for an aggressive strain of HPV.
The expert with whom Belgum consulted told him that technology existed to tie a particular strain of HPV with which a person is infected to a particular donor, so it might be possible to tie Eugene to Gina’s HPV infection. The expert did not provide Belgum with an opinion that within a reasonable medical probability it was Eugene who had infected Gina with HPV or with information about infection rates in the general population or latency periods.
Thus, before the underlying complaint was filed against Eugene, neither Gina nor the unnamed expert provided Belgum with evidence tending to establish that within a reasonable medical probability it was Eugene and not one of Gina’s prior sexual partners who had infected her with HPV. Gina’s statement to Belgum that none of her other sexual partners had a diagnosis of HPV does not establish that they were not infected with HPV; Belgum had no evidence that Gina’s other sexual partners had been tested for HPV. Without such information, Belgum had insufficient evidence establishing probable cause to file the complaint against Eugene in February 2003.
The record also permits the inference that there was no reasonable probability that Belgum could have obtained evidence to support an action against Eugene during the pendency of the underlying action. The underlying action was pending for over a year before the hearing on Eugene’s summary judgment motion in April 2004. In opposition to the summary judgment motion, Belgum did not offer any evidence nor did he assert that facts essential to justify opposition existed but could not then be presented. Thus, the record shows that there was no reasonable probability that Belgum could have obtained evidence supporting proof of causation. Under the rules for probable cause set out in Puryear and for causation set out in Jones, Belgum lacked probable cause to institute the action against Eugene.
B. Malice
“The malice element of the malicious prosecution tort goes to the defendant’s subjective intent in initiating the prior action. [Citation.] For purposes of a malicious prosecution claim, malice ‘is not limited to actual hostility or ill will toward the plaintiff. Rather, malice is present when proceedings are instituted primarily for an improper purpose.” (Sycamore Ridge Apartments, supra, 157 Cal.App.4th at p. 1407.) Improper purposes include, but are not limited to, those in which (1) the person bringing the suit does not believe that the claim may be held valid; (2) the proceeding is initiated primarily because of hostility or ill will; (3) the proceeding is initiated solely for the purpose of depriving the opponent of a beneficial use of his property; or (4) the proceeding is initiated for the purpose of forcing a settlement bearing no relation to the merits of the claim. (Ibid.) If the prior action was not objectively tenable, the extent of a defendant attorney’s investigation and research may be relevant to the further question of whether or not the attorney acted with malice. (Ibid.)
Accepting as true the evidence offered by Eugene, and without regard to any contrary evidence or inferences, we conclude that the evidence permits the inference that Belgum’s filing of Gina’s action was motivated by the improper purpose of attempting to force a settlement that bore no relation to the merits of the claim. According to Davis, Belgum admitted to him that Gina was mad at Eugene and wanted to punish him as well as to extract a monetary settlement. And the lack of probable cause is further circumstantial evidence that Belgum was acting with an improper motive. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218 [although insufficient by itself to establish malice, lack of probable cause is factor relevant to issue of malice].) Belgum maintains that the foregoing evidence is inadmissible hearsay, but, as noted, any objections have been forfeited for failure to seek a ruling on them. Accordingly, under the appropriate standard of review, we conclude that Eugene established a prima facie case of malicious prosecution sufficient to defeat a special motion to strike.
Belgum does not dispute Eugene’s assertion that if the order granting the special motion to strike the malicious prosecution claim is reversed, the order awarding attorney fees to Belgum also falls.
Because we reverse the order granting the special motion to strike, we need not address the issue of whether the trial court abused its discretion in granting Belgum’s ex parte application to file a late motion to strike, which was addressed by both parties in supplemental letter briefs after Eugene’s reply brief was filed.
DISPOSITION
The order granting the special motion to strike the malicious prosecution claim is reversed and on remand the trial court is directed to vacate the order awarding attorney fees to Belgum. Eugene L. is entitled to costs on appeal.
We concur: ROTHSCHILD, J., WEISBERG, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Section 425.16 is sometimes referred to as the “anti-SLAPP statute,” with “SLAPP” being an acronym for “‘strategic lawsuit against public participation.’” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 268 & fn. 1 (Soukup).)