Nunez v. Pennisi, No. H039910 (D6 Oct. 27, 2015)
This is an appeal of an order denying anti SLAPP motion in a malicious prosecution case and ordering defendants to pay fees as a sanction for filing a frivolous motion under Code of Civil Procedure § 425.16(c).
By its very nature, the case arises from protected activity—the underlying lawsuit that was allegedly maliciously prosecuted. So it all comes down to whether plaintiff showed a probability of prevailing. The court ultimately finds that one plaintiff established a probability of prevailing against one defendant, but there was no merit as to all the other claims.
As to the sanctions, the kind of split decision on the merits that resulted here doesn’t seem to merit a finding that the motion was totally frivolous. In any event, in awarding fees based on the denial of an anti-SLAPP motion, trial courts are required to follow the procedures under § 128.7, the statute that generally governs sanctions for frivolous filings. Those rules require the trial court to explain its reasoning. Since the trial court didn’t do that here, on remand it needs either to give an explanation or deny sanctions.
Reversed, in part, and remanded.
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