Showing Lack of Probable Cause: Plaintiff’s Burden of Proof in Opposing an Anti-SLAPP Motion Attacking a Malicious Prosecution Claim

By Mark T. Drooks and Sharon Ben-Shahar Mayer

Mark T. Drooks is a partner at Bird Marella in Los Angeles.

Sharon Ben-Shahar Mayer is a partner at Bird Marella in Los Angeles.

An anti-SLAPP motion is a critical phase in a malicious prosecution case. Courts have long held that malicious prosecution claims fall within the purview of the anti-SLAPP statute, which gives the defendants an extraordinary tool to force plaintiffs to establish the prima facie merits of their case before discovery even starts. An anti-SLAPP motion can be case dispositive and, if successful, entitles the moving party to attorneys’ fees. An order granting or denying the motion is immediately appealable and appellate review is de novo. It is therefore not surprising that anti-SLAPP motions are frequently filed in malicious prosecution cases, and there is substantial case law analyzing the elements of malicious prosecution. But analyzing the plaintiff’s burden in establishing a lack of probable cause on an anti-SLAPP motion can get tricky.