                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             OCT 19 2012

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

MANI SUBRAMANIAN, an individual                  No. 09-15598
and as a derivative action plaintiff,
                                                 D.C. No. 3:06-cv-03050-VRW
              Plaintiff - Appellant,

  v.                                             MEMORANDUM*

QAD, INC., a Delaware corporation with
principal place of business in California; et
al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                     for the Northern District of California
                   Vaughn R. Walker, District Judge, Presiding

                             Submitted July 19, 2012**
                             San Francisco, California

Before: HUG, FARRIS, and LEAVY, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Appellant appeals pro se the district court’s judgment and orders striking his

cause of action for malicious prosecution, dismissing his cause of action for unfair

competition, dismissing the remainder of his action for failure to prosecute, and

related orders. We affirm.

      1.     Malicious Prosecution Cause of Action

      The district court granted appellees’ motion to strike appellant’s cause of

action for malicious prosecution under California Code of Civil Procedure §

425.16, the California anti-SLAPP law. See Chitsazzadeh v. Kramer & Kaslow,

130 Cal. Rptr. 3d 910, 912 n.1 (Cal. Ct. App. 2011). We review the grant of a

motion to strike under the anti-SLAPP law de novo. See Vess v. Ciba-Geigy Corp.

USA, 317 F.3d 1097, 1102 & 1109 (9th Cir. 2003).

      A motion to strike under the anti-SLAPP law is appropriate if the cause of

action arises from the defendants’ protected activity and the plaintiff cannot

demonstrate a probability of prevailing on the challenged cause of action. Vess,

317 F.3d at 1110; Chitsazzadeh, 130 Cal. Rptr. 3d at 913-14; Equilon Enterprises

v. Consumer Cause, Inc., 52 P.3d 685, 694 (Cal. 2002).

      A malicious prosecution claim arises from the initiation and prosecution of a

lawsuit and falls within the scope of activity protected under the anti-SLAPP




                                          2                                      09-15598
statute. Jarrow Formulas, Inc. v. LaMarche, 74 P.3d 737, 741-46 (Cal. 2003);

Paiva v. Nichols, 85 Cal. Rptr. 3d 838, 847-48 (Cal. Ct. App. 2008).

      Appellant cannot demonstrate a probability that his malicious prosecution

claim would succeed. Under California law, a malicious prosecution claim

requires the plaintiff to show that the underlying action reached a legal termination

in his favor. Sheldon Appel Co. v. Albert & Oliker, 765 P.2d 498, 501 (Cal. 1989);

Bertero v. National General Corp., 529 P.2d 608, 613 (Cal. 1974). Here, the

underlying state litigation was terminated based on a negotiated settlement. “A

settlement does not constitute favorable termination of an action for the purposes

of a malicious prosecution claim.” Cantu v. Resolution Trust Corp., 6 Cal.Rptr.2d

151, 165 (Cal. Ct. App. 1992). Accordingly, the district court properly granted

appellees’ motion to strike the malicious prosecution cause of action.

Chitsazzadeh, 130 Cal. Rptr.3d at 913-14.

      2.     Unfair Competition Cause of Action

      The district court dismissed appellant’s unfair competition cause of action

under California res judicata law. Constantini v. Trans World Airlines, 681 F.2d

1199, 1201 (9th Cir. 1982). We review de novo dismissals for failure to state a

claim based on res judicata. Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir.

2002). Res judicata precludes lawsuits on “any claims that were raised or could


                                          3                                   09-15598
have been raised in a prior action.” Id., quoting Owens v. Kaiser Found. Health

Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). In California, res judicata applies if

the decision in the prior proceeding was final and on the merits and the present

proceeding is on the same cause of action as the prior proceeding. Citizens For

Open Gov’t v. City of Lodi, 140 Cal.Rptr.3d 459, 481-82 (2012). Appellant

brought claims for unfair competition in the underlying state litigation and in his

prior federal action against appellees. In the previous federal case, the district

court dismissed the unfair competition claim with prejudice, after which we

affirmed. St. Paul Fire & Marine Ins. Co. v. Vedatech Int’l, Inc., 245 Fed. Appx.

588, 591 (9th Cir. 2007). The unfair competition allegations appellant now asserts

were litigated or could have been litigated in the prior federal action. The claim is

therefore barred by res judicata. Stewart, 297 F.3d at 956; Citizens For Open

Gov’t, 140 Cal.Rptr. 3d at 481-82.

      3.     Failure to Prosecute

      The district court dismissed appellant’s action for failure to prosecute under

Fed. R. Civ. P. 41(b), after appellant failed to appear at a case management

conference, failed to appear at two scheduled depositions, and failed to comply

with the district court’s orders to provide discovery and pay attorneys’ fees. We

review an order dismissing an action under Fed. R. Civ. P. 41(b) for abuse of


                                           4                                    09-15598
discretion. In Re PPA Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir.

2006). The district court considered proper factors and determined that further

delay was not justified and would prejudice the defendants and that less drastic

measures, including monetary sanctions and contempt orders, had failed to curb

appellant’s dilatory conduct. See Id.; Carey v. King, 856 F.2d 1439, 1440 (9th Cir.

1988) (describing proper factors to consider). Accordingly, the district court did

not abuse its discretion. PPA Products, 460 F.3d at 1226; Carey, 856 F.2d at 1440.

      4.     Remaining Contentions

      We have reviewed appellant’s remaining contentions, including that the

district court erred by imposing sanctions, awarding appellees attorneys’ fees,

denying leave to make further amendments to the complaint, denying a

continuance for further discovery, and denying appellant’s recusal challenge.

These contentions have no merit.

      We have also considered appellant’s request to join Vedatech K.K. as a

party. We deny that request.

      AFFIRMED.




                                         5                                    09-15598
