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B. Action for Malicious Prosecution
In April 2016, Reyes filed this malicious prosecution action. The complaint
named Kruger, as Reyes’s landlord in the prior action, Rothbard, as Kruger’s attorney in
the prior action, and Alex Alonzo, who was the process server for the three-day notice to
pay rent or quit in the prior action, as defendants. The defendants each filed demurrers to
the complaint, and Kruger and Rothbard also filed anti-SLAPP motions. The trial court
sustained Alonzo’s demurrer with leave to amend, and in light of that order overruled
Kruger’s and Rothbard’s demurrers and denied their anti-SLAPP motions as moot.
In June 2016, appellants filed the operative, first amended complaint (hereafter,
“complaint”) with a single cause of action for malicious prosecution. Reyes dismissed
defendant Alonzo from the action. The complaint alleged that Kruger engaged in fraud
and perjury by falsely testifying at trial in the prior action that she had returned $2,800 in
cash to Reyes by handing an envelope to an employee at the medical marijuana
dispensary. Reyes claimed that there was a compelling reason for the false testimony
because without the purported cash payment, Kruger’s three-day notice to pay would
have been outside the 20 percent margin of error allowed for commercial leases.
Kruger and Rothbard each filed demurrers and special motions to strike the
complaint under California’s anti-SLAPP statute (§ 425.16). The anti-SLAPP motions
established that the complaint’s cause of action was based upon a protected activity and
asserted that Reyes lacked the evidentiary showing required to demonstrate a probability
of prevailing on the merits of the malicious prosecution case. Reyes filed a single
opposition to the anti-SLAPP motions, supported by a declaration and exhibits and
request for judicial notice. Kruger and Rothbard each filed a reply and asserted
evidentiary objections to appellants’ opposition.
The trial court granted both anti-SLAPP motions. It ruled on respondents’
identical requests for judicial notice and, in a detailed analysis, considered the evidence
and legal issues pertaining to the special motions to strike. The court found that Reyes
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had not established a probability of prevailing on the merits of each element of the
malicious prosecution claim. It overruled the demurrers as moot based upon its ruling
granting the two special motions to strike the complaint. The trial court served a
file-stamped copy of the order with proof of service on November 22, 2016 (hereafter
“November 22 order”). Counsel for Kruger served a notice of entry of judgment or order
on November 29, 2016.
On January 23, 2017, the trial court entered a judgment of dismissal based upon
the November 22 order granting the anti-SLAPP motions and awarded reasonable
attorney fees and costs, to be determined by separate motion (hereafter, “January 23
judgment”). Counsel for Kruger served a notice of entry of judgment or order on
January 30, 2017.
On February 2, 2017, Reyes filed a notice of intention to move for a new trial.
Reyes filed a memorandum of points and authorities in support of the new trial motion, as
well as supporting documents. Kruger and Rothbard filed separate oppositions to the
motion for new trial and renewed their prior objections to the Reyes declaration which
was resubmitted in support of the motion for new trial. Reyes filed a single reply brief in
support of the motion. On March 30, 2017, the trial court entered an order denying the
motion for new trial and served a file-stamped copy with proof of service. Kruger served
notice of entry of judgment or order denying a new trial on April 5, 2017.
Reyes filed a notice of appeal on April 14, 2017. The notice appealed from the
judgment entered in favor of Kruger on January 23, 2017, “and from all orders relating
thereto, including and not limited to the” order denying the motion for new trial, entered
on March 30, 2017.