                                                                                         FILED
                               NOT FOR PUBLICATION                                        MAR 16 2012

                                                                                     MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                                  U.S. COURT OF APPEALS



                                FOR THE NINTH CIRCUIT


 TRACY HAMPTON-STEIN, et al.,                           No. 10-56573

                Plaintiffs-Appellants,                  2:10-cv-03897-RGK-PJW

   v.
                                                        MEMORANDUM*
 AVIATION FINANCE GROUP, LLC, et
 al., et al.,

               Defendants-Appellees.


                      Appeal from the United States District Court
                         for the Central District of California
                      R. Gary Klausner, District Judge, Presiding

                        Argued and Submitted February 13, 2012
                                 Pasadena, California

Before:        FARRIS and W. FLETCHER, Circuit Judges, and KORMAN,
               Senior District Judge.**
        Plaintiff-Appellant Tracy Hampton-Stein (“Hampton”) appeals from a district

court order granting defendants-appellees’ anti-SLAPP motion and dismissing

Hampton’s suit for malicious prosecution. Hampton argues that the district judge

        *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
        **
               The Honorable Edward R. Korman, Senior United States District Judge for the
Eastern District of New York, sitting by designation.
should have denied the anti-SLAPP motion (1) because Hampton’s malicious

prosecution suit had the minimal merit necessary to survive, and (2) because the

defendants failed to comply with certain procedural rules.

      We review de novo the district court order granting the defendants’ anti-SLAPP

motion. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). Upon

such review, we conclude that the district court did not err in granting the defendants’

anti-SLAPP motion on its merits.

      To survive an anti-SLAPP motion, Hampton’s complaint must be “legally

sufficient and supported by a prima facie showing of facts to sustain a favorable

judgment if the evidence submitted [by her] is credited.” Taus v. Loftus, 40 Cal. 4th

683, 713-14 (2007) (quotations and citations omitted). Hampton’s cause of action for

malicious prosecution requires that, among other things, the prior action about which

she complains—Aviation Finance Group’s fraudulent conveyance suit—had been

initiated with malice, which means having an improper motive for bringing the suit.

Drummond v. Desmarais, 176 Cal. App. 4th 439, 449-51 (2009).

      The fraudulent conveyance suit arose out of a loan taken by Hampton from

Aviation Finance Group (“AFG”) for the purchase of a jet. After Hampton defaulted

on the loan, AFG won a judgment in Idaho (which was later domesticated in

California) for the remaining balance and was also awarded immediate possession of


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the jet. The fraudulent conveyance suit was based on what turned out to be the

erroneous premise that Hampton’s transfer of her home to a trust for the benefit of her

daughter was fraudulent under California law.

      Hampton argues that the lack of probable cause for AFG’s fraudulent

conveyance suit is evidence of malice when AFG and its attorneys are sophisticated

and should, or likely did, know it was meritless. A lack of probable cause can support

an inference of malice, but it is insufficient evidence by itself. See Drummond, 176

Cal. App. 4th at 452. This is particularly true when the evidence suggests that AFG

voluntarily withdrew its complaint as soon as it became apparent that it was based on

a mistaken premise.

      Nor is the other evidence upon which Hampton relies sufficient to show malice.

AFG President Jerry Dunn allegedly made menacing comments to Hampton.

Nevertheless, as the district court correctly held, these crude comments focused on

recovering money from Hampton and show “that Defendants’ motive in filing the

Conveyance Suit was to obtain repayment on the loan” owed by Hampton to AFG.

Moreover, while AFG’s alleged failure to properly maintain the private jet it

repossessed from Hampton may affect AFG’s recovery under the Idaho judgment, it

is not evidence of malice.




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      Finally, the district court did not abuse its discretion in refusing to deny the

anti-SLAPP motion under Local Rule 7-3, nor did it abuse its discretion in ruling that

the motion was timely under Cal. Code Civ. Proc. § 425.16(f). We rarely question a

district judge’s discretion in applying the local rules, see United States v. Warren, 601

F.2d 471, 474 (9th Cir. 1979), and the language of § 425.16(f) (motion “may be filed

. . . , in the court’s discretion, at any later time upon terms it deems proper”) plainly

allows a district judge to determine when a motion is timely filed.

      AFFIRMED.




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