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Zucchet v. Galardi

New Court of Appeal Opinion re: Anti-SLAPP Statute in Malicious Prosecution Case Arising from Testimony in Criminal Prosecution

The California Court of Appeal, Fourth Appellate District, Division One (San Diego) recently issued an opinion in Zucchet v. Galardi, 229 Cal. App.4th 1466 (2014), analyzing whether the anti-SLAPP statute applies to a malicious prosecution action arising from defendant Galardi testifying in a criminal proceeding against plaintiff Zucchet. (Slip opn., pp. 6, 8, 11.) The Court of Appeal held Galardi established that the malicious prosecution claim arose from protected activity and Zucchet did not establish a probability of prevailing on the merits of his claim. (Id. at pp. 11, 19.)

Zucchet contended that Galardi’s testimony provided in the criminal trial against him was false and not protected by the anti-SLAPP statute because it was not a valid exercise of Galardi’s constitutional rights to give false testimony. (Slip opn., p. 12.) The Court of Appeal held that the exception for illegal activity is very narrow and applies only when the illegality of the activity is uncontested or conclusively established. (Id. at p. 13.) According to the court, Galardi’s statements did not fall within the exception and Galardi satisfied his burden on the first prong of the anti-SLAPP statute. (Id. at p. 17.) The Court of Appeal also held that Zucchet could not establish a probability of prevailing on the merits because merely being a witness in a criminal prosecution and giving information in response to a request by law enforcement in an ongoing criminal proceeding, without more, does not give rise to a claim for malicious prosecution. (Id. at pp. 19, 24.)

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• Professional Liability