Prima Facie Proof of a Negative

Gruber v. Gruber, No. B294617 (D2d2 Apr. 30, 2020)

Pretty basic appeal of an order denying an anti-SLAPP motion on a malicious prosecution claim because plaintiff came forward with enough evidence of lack of probable cause to defeat the motion. In affirming, the Court of Appeal has an interesting discussion of the relationship between the prima facie standard in the second element of the anti-SLAPP analysis and the lack of probable cause issue for malicious prosecution. 

Framed in the context of the test, the question is how does a plaintiff come forward with enough evidence that, if credited as true, would permit a reasonable jury to find that no reasonable attorney would have thought the prior claim had any merit? Well here, the underlying lawsuit was for fraud. In opposing the motion, Plaintiff came forward with evidence showing that the defendants (plaintiffs in the prior case) knew that the statement they sued over was actually true. And that, my friends, is enough to beat an anti-SLAPP motion, even if the evidence is hotly disputed.

Affirmed.