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Madrid v. Schreiber9/14/2005
rosecuted with malice [citation], but the lack of probable cause must be supplemented by other, additional evidence. [Citation.] Since parties rarely admit an improper motive, malice is usually proven by circumstantial evidence and inferences drawn from the evidence. [Citation.]" (HMS Capital, supra, 118 Cal.App.4th at p. 218.)
As set forth in the preceding section, there is a lack of probable cause for the sexual harassment claim. In addition, in opposition to the anti-SLAPP motion, Madrid and Parkside submitted the declaration of their counsel describing "a constant animosity and vindictiveness [between Solo and Madrid] from the outset of the case." The animosity between the two was apparent during Madrid's deposition and during court appearances. According to the attorney, Solo "was looking for an excuse to get into confrontations with [Madrid]."
In HMS Capital, the Court of Appeal held that efforts by a plaintiff "to squeeze a settlement from [the defendant] on a baseless case" constituted evidence of malice for purposes of malicious prosecution. (HMS Capital, supra, 118 Cal.App.4th at p. 218.) Here, in opposition to the anti-SLAPP motion, Madrid and Parkside's counsel submitted copies of correspondence between him and Solo during the course of the Harassment Action. These documents include a December 2002 letter sent to Solo following Madrid's deposition, in which counsel for Madrid states: "Clearly, you cannot show any form of sexual harassment based upon what you have alleged to date and the deposition of [Madrid]. You cannot in any manner find any facts that would support your allegations that there is a failure to maintain an environment free from harassment, or that any sexual harassment ever existed." The letter concludes with an invitation to submit the matter to binding arbitration. The invitation was apparently declined. Later, following Schreiber's deposition, Madrid's counsel again told Solo that "there was absolutely no basis for a sexual harassment claim based upon [Schreiber's] testimony and all of the documentation in the discovery." Although Solo told Madrid's counsel that the sexual harassment claim was "weak," and he would consider dismissing the claim, he did not.
Thus, in addition to the lack of evidence supporting the sexual harassment claim, the evidence of animosity by Solo toward Madrid and his refusal to dismiss or resolve the sexual harassment claim despite its lack of merit satisfy Madrid's and Parkside's burden of showing malice for purposes of defeating the anti-SLAPP motion.
Because the record includes sufficient evidence to establish a prima facie case of malicious prosecution as to Schreiber's and Solo's sexual harassment claim, the anti-SLAPP motion was properly denied.
DISPOSITION
The order denying the anti-SLAPP motion is affirmed. Respondents' request for sanctions is denied. Respondents are awarded their costs on app
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