This case correctly interprets and applies precedent. Plaintiff files a malicious prosecution suit, claiming that defendants filed a lawsuit against them without probable cause. Defendants file an anti-SLAPP motion that seeks to dismiss the lawsuit. The trial court grants it, and the Court of Appeal affirms.
There's no doubt that the lawsuit arises from the right to petition; i.e., stage one of the anti-SLAPP test. The question is purely whether plaintiff has demonstrated a probability of success.
The trial court and the Court of Appeal both hold that, as a matter of law, plaintiff didn't do so. On the ground that the trial court in the underlying action denied the defendant's motion for nonsuit. Since the trial court thought there was enough evidence to get to a jury, by definition, there was probable cause. So the malicious prosecution suit gets dismissed.
That's indeed what I think California precedent holds.
But let me nonetheless offer a critique of this position.
As an outsider, I think there are two serious problems with this doctrine. The first is a super geeky one, but simultaneously a doctrinally very serious one: res judicata.
What the Court of Appeal is basically saying is that we're going to give issue preclusion to the trial court's finding that there was sufficient evidence to reach the jury. Okay, that's fine. After all, it was indeed actively litigated and actually decided. But normally, we only give preclusive effect to issues that were fully and fairly litigated. Moreover, since we know that single judges sometimes make mistakes, we count as "fully" litigated only those things that are subject to appellate review. For example, if plaintiff sues defendant for negligence, and the jury finds both that the defendant was negligent and that plaintiff was negligent -- and thereby enters judgment (in a pure contributory negligence jurisdiction) for the defendant -- even though the jury actually and finally decided that the defendant was negligent, we do not invest issue preclusion in that finding. Why not? Because it wasn't subject to appellate review. Defendant won the lawsuit anyway. As the winner, it couldn't appeal the adverse finding. As a result, as a doctrinal matter, we're insufficiently confident in the validity of the jury's finding about defendant's negligence to give it preclusive effect. That issue was not able to be "fully" and finally litigated. So even at the cost of efficiency and other downsides, we deny preclusive effect.
That same principle seems equally applicable to me in the present case. Defendant moves for nonsuit. The motion gets denied. But the jury then finds in favor of the defendant. Defendant in that setting does not have the ability to challenge the denial of its nonsuit motion. It won. There's no standing. No injury. Given that reality, why do we give this finding preclusive effect? It seems flatly inconsistent with the normal requirement that preclusion be granted only to fully litigated findings.
The second problem is perhaps somewhat related to the first, but is more a practical than doctrinal issue. Imagine that you're a trial judge. Plaintiff's put on his case. You think it sucks. Your gut tells you it's not legally sufficient. Defendant predictably moves for a nonsuit. You're thinking about whether or not to grant the motion.
If you grant the motion, the standard on appeal is very strict against you. You might well be reversed. The practical effect of which will be to waste everyone's time and money. Threefold. An appeal, a new trial, a new jury, etc.
By contrast, what happens if you deny the motion? You think plaintiff's case is terrible. So terrible that it's insufficient as a matter of law. Don't you think the jury -- who's hearing the same evidence as you -- will likely come to the same conclusion? Especially since the standard for their decision is much more weighted in favor of the defendant: you've got to decide if the evidence is legally insufficient, whereas they only have to decide whether plaintiff has established its case by a preponderance of the evidence. If the evidence is near (or at) zero, isn't it likely that the jury's going to decide the case the same way you would? Even more so?
Why not give the jury the chance to get it right? The jurors will be happier. It'll only take a little time. And the resulting verdict will be much more likely to be upheld on appeal, since the deference given to a verdict -- as opposed to a nonsuit -- is so much greater that it's not even funny. Indeed, whereas your granting of a nonsuit will almost certainly be the subject of an appeal -- one that consumes resources of both sides -- if a jury decides the case, that'll almost certainly end it once and for all. No way the plaintiff's going to appeal an adverse jury verdict. Won't even try.
So why not just deny the motion? Doesn't that make eminent practical sense. Especially since even if you're wrong about the jury's ultimate decision, there's totally no downside. You can just grant a j.n.o.v. at that point. A motion that's substantively identical to the pending nonsuit motion. The only difference is timing and the potential to obtain an infinitely superior verdict from the jury itself.
I'm not the only one that thinks this way. Judges routinely deny nonsuit motions on precisely such practical grounds. Whether they expressly say so or not. Every single j.n.o.v. motion that's granted was previously a nonsuit motion that was denied. What changed? Absolutely nothing. Same evidence. Same judge. Same everything. Almost always, the judge simply wanted to give the jury a shot. For eminently sensible reasons.
This practical reality is yet more reason not to give the denial of a nonsuit motion preclusive effect. Especially since, as noted above, there's no way to test the legal validity of the trial judge's decision not to grant nonsuit motions if and when the defendand prevails anyway. Defendant won. They can't appeal. We simply cannot litigate in the underlying case whether the trial court was right that the evidence was insufficient. Or even if that's what he actually thought, was opposed to letting the case go.
I mention this both because I think it's true as a general matter and also because there's some reason to think that that's what may have transpired here. When the defendant moved for a nonsuit, the trial judge said: "Well, okay, at this point, the court is supposed to give plaintiff the benefit of the doubt on the evidence. And viewing the evidence in the light most favorable, I think there's enough there to let it go past this point." My strong sense is that the trial judge's comments reflect that he didn't particularly think plaintiff's case was all that strong, and that the jury would likely find for defendant. Sure, maybe Judge Taylor thought that there was sufficient evidence. But maybe he was also thinking: "It's a tough legal standard. Why risk reversal? A result that doesn't benefit anyone. I'll just let the thing go forward for now."
And, if so, he was right. Jury found for defendant. Exactly as predicted.
I know we don't like malicious prosecution cases. But there are no special res judicata rules that make the normal principles inapplicable therein. There's a profound tension between the usual full and fair opportunity to litigate cases and cases like this one. I'm just not sure that results like the one here are tenable on any but the most unprincipled, results-oriented grounds.
