Case Number: SC124447 Hearing Date: August 30, 2016 Dept: K
The Special Motion to Strike filed by Cross-Defendant Fatsalagata, Inc. is granted as to the 10th Cause of Action (Abuse of Process).
As to the 1st prong of the analysis, an Abuse of Process claim is automatically subject to an Anti-SLAPP Motion. See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735.
As to the 2nd prong of the analysis (the probability of prevailing on the claim), the court must apply a “summary judgment like” test. The court must accept as true the evidence favorable to a Plaintiff and evaluate a Defendant’s evidence in terms of whether the Plaintiff’s evidence has been defeated as a matter of law.
Here, the Abuse of Process claim is based upon filing and maintaining a lawsuit which might be the basis for a malicious process claim but not abuse of process. Abuse of Process involves misuse of the process like excessive attachments or improper use of discover.
The litigation privilege under Civil Code Section 47(b) applies to an Abuse of Process claim to the extent it is based on the filing of a Complaint.