Filed 9/25/14

                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                                STATE OF CALIFORNIA



MICHAEL ZUCCHET,                                   D064104

        Plaintiff and Respondent,

        v.                                         (Super. Ct. No. 37-2012-00083128-
                                                   CU-MC-CTL)
MICHAEL DEAN GALARDI,

        Defendant and Appellant.


        APPEAL from an order of the Superior Court of San Diego County, Judith F.

Hayes, Judge. Reversed and remanded with directions.



        Manning & Kass, Ellrod, Ramirez, Trester, Darin L. Wessel and John D. Marino

for Defendant and Appellant.

        Law Offices of Martin N. Buchanan, Martin N. Buchanan; Coughlan, Semmer,

Fitch & Pott, R.J. Coughlan, Jr., Cathleen G. Fitch; Gomez Trial Attorneys and John H.

Gomez for Plaintiff and Respondent.

        Michael Dean Galardi appeals from the trial court's order denying his special

motion to strike under the anti-SLAPP statute (Code of Civ. Proc., § 425.16) in a
malicious prosecution action brought against him by Michael Zucchet.1 As we will

explain, we conclude that the trial court erred in denying the special motion to strike, and

we therefore reverse and remand with directions.

                                               I

                   FACTUAL AND PROCEDURAL BACKGROUND

       Galardi owned several strip clubs in Las Vegas and one in San Diego.2 In 2000,

the San Diego City Council enacted a "no-touch" ordinance, which banned touching

between exotic dancers and patrons in strip clubs. Galardi hired Lance Malone as a

lobbyist to try to obtain repeal of the no-touch ordinance.

       Malone's lobbying activities included meeting with and making campaign

contributions to members of the San Diego City Council (city council), including

Zucchet, who was elected to the city council in November 2002.

       In 2001, Malone made campaign contributions to city council member Ralph

Inzunza (with money traceable to Galardi), and Malone and Inzunza thereafter discussed

a strategy to repeal the no-touch ordinance.

1     Unless otherwise indicated, all further statutory references are to the Code of Civil
Procedure. SLAPP is an acronym for strategic lawsuit against public participation.
(Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109 & fn. 1
(Briggs).)

2       Zucchet's malicious prosecution lawsuit against Galardi arises from a federal
criminal prosecution against Zucchet that has been the subject of written judicial
decisions by both the federal district court and the Ninth Circuit Court of Appeals. As
very little of the evidence from the federal criminal trial appears in the appellate record in
this case, our description of the background of the criminal prosecution and the evidence
presented at trial will be based, to a large extent, on the federal court decisions.

                                               2
       As part of Inzunza's and Malone's plan to repeal the no-touch ordinance, Inzunza

planned to draft a legislative proposal that would appear to tighten the overall restrictions

on strip clubs but would also eliminate the no-touch ordinance. Inzunza and Malone

arranged to have an ostensibly corrupt police officer (Detective Russ Bristol, who turned

out to be an FBI informant) express public support for the plan, and to arrange for

imaginary citizens to contact the city council to express interest in the laws governing

adult entertainment businesses.

       Inzunza advised Malone to contribute to Zucchet's campaign. Malone attempted

to make a $6,750 contribution to Zucchet's campaign in 2001, but Zucchet returned the

money because it was a political liability to be associated with Galardi's adult

entertainment business. In 2002, Malone donated approximately $5,000 to Zucchet's

campaign in checks that were not traceable to Galardi through one of Galardi's employees

who ran a gym (and who also turned out to be an FBI informant).

       In February 2003, Zucchet, Inzunza and Malone had a lunch meeting at which

Malone explained to Zucchet his goal of repealing the no-touch ordinance. Zucchet told

Malone he was not optimistic about the repeal because the police department was

unlikely to support it. Malone tried to arrange for Zucchet to meet with Detective Bristol,

who would express police support for the repeal, but Zucchet met instead with a police

lieutenant who stated that the police supported the no-touch ordinance.

       On April 16, 2003, Zucchet had a breakfast meeting with Malone. At the meeting,

Malone talked about how he had contributed money during Zucchet's campaign. Zucchet

agreed to "do the lifting at the committee level" of a plan that Malone had formulated as

                                              3
to how to get the repeal of the no-touch ordinance on the city council agenda.

Specifically, Malone planned to have a concerned citizen appear before the relevant city

council committee and ask to change the geographical distance requirements between

adult businesses. Once the issue of adult entertainment businesses had been referred to

the committee, Detective Bristol would appear to criticize the no-touch rule, and Inzunza

would thereafter take action to repeal the no-touch ordinance.

          The concerned citizen appeared before the city council on April 30, 2003, to

request expansion of the distance requirements between adult businesses, and Zucchet

participated in Malone's plan — as promised — by referring the matter for a report by the

city attorney. In May 2003, Zucchet learned from the city attorney that the current

distance requirements could not be expanded and he accordingly did not refer the matter

to the committee.

          On May 14, 2003, the government executed a series of search warrants, raiding

city hall. In August 2003, a federal grand jury indictment was filed, naming Inzunza,

Zucchet, Galardi, Malone and others as defendants in numerous counts of fraud and other

crimes, all arising from the scheme to repeal the no-touch ordinance.

          Galardi was indicted on 38 separate counts, which, together with another

indictment filed in Las Vegas, carried the possibility of a 20-year sentence. In a

September 2003 plea agreement, Galardi agreed to enter a guilty plea to a charge of

conspiracy to commit wire fraud and agreed to cooperate with the government's

prosecution of the other defendants. Galardi was eventually sentenced to 15 months in

prison.

                                               4
       A superseding indictment was filed against Zucchet, Inzunza, Malone and one

other defendant in October 2004. Against Zucchet, the superseding indictment

specifically alleged 33 counts of honest services wire fraud in violation of 18 United

States Code sections 1343 and 1346, one count of conspiracy to commit honest services

wire fraud in violation of 18 United States Code section 371, and three counts of

extortion in violation of the Hobbs Act (18 U.S.C. §§ 1951-1952). A jury trial was held

in May through July 2005.

       Among other things, Galardi testified at trial that (1) in March 2003, he gave

Malone $6,000 to divide among Inzunza, Zucchet and one other city council member;

and (2) on April 15, 2003, the night before Malone's breakfast meeting with Zucchet, he

gave Malone $10,000 with instructions to give it to the city council members. Galardi

also testified that Malone's response to Galardi's eventual inquiry about the cash was " 'it

had been taken care of ' " or " 'it went well.' "3 The government presented corroborating

evidence from another witness — Galardi's domestic partner — who testified that she

observed Galardi give cash to Malone on April 15, 2003.

       It is undisputed that Galardi did not mention an April 2003 payment to the city

council members in his interviews with the government until 2005, and that neither

version of the federal indictments mentioned any payments to Zucchet by Galardi or



3      The appellate record does not contain most of the reporter's transcripts of Galardi's
testimony concerning his $6,000 and $10,000 payments to Malone. We therefore base
our description of that testimony on statements in the federal district court and Ninth
Circuit decisions.

                                              5
Malone in 2003. Galardi testified that he remembered the $10,000 payment for the first

time in early 2005 when he saw a credit card bill that triggered his memory. According

to Zucchet's declaration and that of his trial attorney, the first time that they learned of

Galardi's allegations about the $10,000 payment was during trial.4

       After an approximate 11-week trial, the jury acquitted Zucchet of 28 of the 37

counts against him. Zucchet moved for a judgment of acquittal or in the alternative for a

new trial on the remaining counts.

       The district court granted the judgment of acquittal on seven of the counts, all of

which related to conduct that occurred no later than March 2003. The district court

concluded that insufficient evidence supported a finding that Zucchet engaged in or had

knowledge of a quid pro quo during that time period premised on Malone's payment to

the city council members, as was required for each of the seven counts.

       However, on the remaining two counts of honest services wire fraud — counts 1

and 32, which focused on events occurring in April 2003 — the district court denied a

judgment of acquittal because the evidence was sufficient to support a verdict against

Zucchet. Specifically, the district court explained that because Galardi testified that he

had given Malone $10,000 to give to the city council members in April 2003 on the day

before the breakfast meeting where Zucchet agreed to participate in Malone's plan to



4      It is unclear from the materials before us whether Galardi testified that Malone's
reply to him that the payment had been "taken care of" was also meant to encompass the
$6,000 payment. Zucchet does not explicitly base his malicious prosecution complaint
on Galardi's testimony about the $6,000, but rather on the testimony about the $10,000.

                                               6
repeal the no-touch ordinance, and because Galardi testified that Malone had reported

back to him that " 'it had been taken care of,' " the evidence "barely suffice[d]" for a

reasonable jury to conclude that Zucchet had received some kind of a quid pro quo in

April 2003. As the district court explained, "a rational jury could conclude that a cash

payment made on April 16, 2003, as suggested by the testimony of Galardi, was the basis

that caused Zucchet to knowingly agree to take part in the scheme to refer proposed

changes to the no-touch ordinance to the committee."

       Although it did not grant a judgment of acquittal on counts 1 and 32, the district

court did grant a new trial on those counts. The district court stated that the evidence

undermined the court's confidence in the verdicts because (1) Galardi's testimony was not

credible concerning the $10,000 payment, in that the circumstances of his recovered

memory were suspect; (2) there was no evidence prior to the April 2003 timeframe of any

quid pro quo involving Zucchet; (3) Galardi's testimony about the $10,000 payment

unfairly surprised Zucchet at trial; and (4) other than Malone's purported statement to

Galardi that it " 'went well' " or " 'had been taken care of ' " there was no evidence that

some or all of the $10,000 was distributed to Zucchet.

       The government appealed the district court's order granting a judgment of acquittal

and new trial.5 The Ninth Circuit affirmed the district court, substantially agreeing with

the district court's reasoning.



5      Galardi has requested that we take judicial notice of portions of the docket in the
Ninth Circuit appeal in Zucchet's federal criminal proceeding. Zucchet opposes the
request. We deny the request to take judicial notice, as the documents are not relevant to
                                              7
       After the mandate issued on the Ninth Circuit decision in October 2010, the

government voluntarily dismissed the two remaining counts against Zucchet.

       Zucchet filed this lawsuit against Galardi in October 2012, asserting a single cause

of action for malicious prosecution. Zucchet alleged that (1) Galardi falsely told the

United States Attorney's Office in January 2005 that he had given $10,000 in cash to

Malone to bribe three city council members, including Zucchet; and (2) Galardi falsely

testified to that cash bribery during the criminal trial against Zucchet. Zucchet alleged

that Galardi "fabricated his claim of a $10,000 payment of a bribe to Zucchet" and that

Galardi made the false accusation for the purpose of "obtaining a lighter sentence for

crimes he pled guilty to." (Capitalization omitted.)

       Galardi filed a special motion to strike the complaint under the anti-SLAPP

statute. (§ 425.16.) Galardi argued that the complaint arose from activity protected by

the anti-SLAPP statute because it arose from statements he made during Zucchet's trial

and to the United States Attorney's Office in preparation for that trial.

       Zucchet opposed the motion, arguing that although malicious prosecution actions

are typically based on First Amendment activity protected under the anti-SLAPP statute,

Galardi's act of giving false information to law enforcement was not protected because it

was illegal. Zucchet further argued that even if Galardi's conduct was not protected,




our resolution of the appeal. (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison
(1998) 18 Cal.4th 739, 748, fn. 6 [declining to take judicial notice of materials not
"necessary, helpful, or relevant"].)

                                              8
Zucchet had satisfied his burden on the second prong of the anti-SLAPP statute to

establish a probability of prevailing in his lawsuit.

       The trial court granted the special motion to strike, concluding that Galardi had not

rebutted the allegation that his conduct was illegal and therefore not protected by the anti-

SLAPP statute. The trial court also concluded that Zucchet had established a probability

of prevailing on his malicious prosecution claim. As permitted by the anti-SLAPP

statute, Galardi filed a notice of appeal from the order denying his special motion to

strike. (§ 904.1, subd. (a)(13).)

                                               II

                                        DISCUSSION

A.     Legal Standards Governing Anti-SLAPP Motions

       The anti-SLAPP statute provides: "A cause of action against a person arising from

any act of that person in furtherance of the person's right of petition or free speech under

the United States Constitution or the California Constitution in connection with a public

issue shall be subject to a special motion to strike, unless the court determines that the

plaintiff has established that there is a probability that the plaintiff will prevail on the

claim." (§ 425.16, subd. (b)(1).)

       "The analysis of an anti-SLAPP motion thus involves two steps. 'First, the court

decides whether the defendant has made a threshold showing that the challenged cause of

action is one 'arising from' protected activity. (§ 425.16, subd. (b)(1).) If the court finds

such a showing has been made, it then must consider whether the plaintiff has

demonstrated a probability of prevailing on the claim.' [Citation.] 'Only a cause of action

                                                9
that satisfies both prongs of the anti-SLAPP statute — i.e., that arises from protected

speech or petitioning and lacks even minimal merit — is a SLAPP, subject to being

stricken under the statute.' " (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811,

819-820 (Oasis West).) "If the defendant does not demonstrate [the] initial prong, the

court should deny the anti-SLAPP motion and need not address the second step." (Hylton

v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271.)

       Section 425.16, subdivision (e) specifies the type of activity protected by the anti-

SLAPP statute: An " 'act in furtherance of a person's right of petition or free speech . . .

in connection with a public issue' includes: (1) any written or oral statement or writing

made before a legislative, executive, or judicial proceeding, or any other official

proceeding authorized by law, (2) any written or oral statement or writing made in

connection with an issue under consideration or review by a legislative, executive, or

judicial body, or any other official proceeding authorized by law, (3) any written or oral

statement or writing made in a place open to the public or a public forum in connection

with an issue of public interest, or (4) any other conduct in furtherance of the exercise of

the constitutional right of petition or the constitutional right of free speech in connection

with a public issue or an issue of public interest." (§ 425.16, subd. (e).)6



6       When the first two subparts of section 425.16, subdivision (e) are at issue (i.e.,
speech or petitioning before a legislative, executive, judicial or other official proceeding;
or statements made in connection with an issue under review or consideration by an
official body), the moving party is not required to independently demonstrate that the
matter is a " 'public issue' " within the statute's meaning. (Briggs, supra, 19 Cal.4th at
p. 1113.)

                                              10
       "Review of an order granting or denying a motion to strike under section 425.16 is

de novo. [Citation.] We consider 'the pleadings, and supporting and opposing affidavits

. . . upon which the liability or defense is based.' (§ 425.16, subd. (b)(2).) However, we

neither 'weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept

as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's

evidence only to determine if it has defeated that submitted by the plaintiff as a matter of

law.' " (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

B.     Under the First Prong of the Anti-SLAPP Analysis, Galardi Has Established That
       the Malicious Prosecution Claim Arises from Activity Protected by the Anti-
       SLAPP Statute

       We now turn to the issue of whether Galardi met his burden to establish the first

prong of the anti-SLAPP inquiry, i.e., that the malicious prosecution action arises from

Galardi's acts in furtherance of the right of petition or free speech.

       Galardi argues that Zucchet's malicious prosecution claim arises from protected

activity in furtherance of Galardi's right of petition or free speech in at least two ways.

First, Galardi's testimony in the federal criminal trial is protected as "any . . . oral

statement . . . made before a . . . judicial proceeding" (§ 425.16, subd. (e)(1)). Second,

Galardi's statement to federal prosecutors as they were preparing for trial is protected as

"any . . . oral statement . . . made in connection with an issue under consideration or

review by a legislative, executive, or judicial body." (§ 425.16, subd. (e)(2).)

       Zucchet does not dispute that, as a general matter, trial testimony and statements

made to prosecutors preparing for a trial fall under the definition of activity in furtherance

of the right to free speech or petition as defined in the anti-SLAPP statute. Case law

                                               11
confirms that position. (Dickens v. Provident Life & Accident Ins. Co. (2004) 117

Cal.App.4th 705, 716 [testimony at a criminal trial and communication with the

executive branch of government and its investigators about a potential violation of law

preparatory to commencing a criminal prosecution are both protected under the anti-

SLAPP statute, so that "a malicious prosecution action predicated upon a defendant's

alleged participation in procuring a criminal prosecution against a plaintiff falls within

the ambit of the anti-SLAPP statute"]; Greka Integrated, Inc. v. Lowrey (2005) 133

Cal.App.4th 1572, 1580 [disclosing information to authorities and in deposition and trial

testimony in response to subpoenas is protected by the anti-SLAPP statute]; Jarrow

Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735 (Jarrow) [observing that "by

its terms, [the anti-SLAPP statute] potentially may apply to every malicious prosecution

action, because every such action arises from an underlying lawsuit, or petition to the

judicial branch"].)

       Although not taking issue with the proposition that Galardi's statements about the

$10,000 payment were in furtherance of Galardi's right to free speech or petition, Zucchet

contends that Galardi's statements are not protected by the anti-SLAPP statute because

they were not a valid exercise of Galardi's constitutional rights in that they were illegal.

       In enacting the anti-SLAPP statute, the Legislature stated that its purpose was to

address "lawsuits brought primarily to chill the valid exercise of the constitutional rights

of freedom of speech and petition." (§ 425.16, subd. (a), italics added.) Our Supreme

Court has accordingly held that when it is uncontested or otherwise conclusively

established that a person acted illegally in exercising his or her First Amendment rights,

                                             12
that activity is not a valid exercise of rights, and is accordingly not protected under the

anti-SLAPP statute. (Flatley v. Mauro (2006) 39 Cal.4th 299, 320 (Flatley).)

Specifically, Flatley held that "where a defendant brings a motion to strike under section

425.16 based on a claim that the plaintiff's action arises from activity by the defendant in

furtherance of the defendant's exercise of protected speech or petition rights, but either

the defendant concedes, or the evidence conclusively establishes, that the assertedly

protected speech or petition activity was illegal as a matter of law, the defendant is

precluded from using the anti-SLAPP statute to strike the plaintiff's action." (Flatley, at

p. 320, italics added.) "The rationale is that the defendant cannot make a threshold

showing that the illegal conduct falls within the purview of the statute and promotes

section 425.16's purpose to 'prevent and deter "lawsuits [referred to as SLAPP's] brought

primarily to chill the valid exercise of the constitutional rights of freedom of speech and

petition for the redress of grievances." (§ 425.16, subd. (a).)' " (Flatley, at p. 316, italics

added.)

       Our Supreme Court has emphasized that the exception for illegal activity is very

narrow and applies only in undisputed cases of illegality. "If . . . a factual dispute exists

about the legitimacy of the defendant's conduct, it cannot be resolved within the first step

but must be raised by the plaintiff in connection with the plaintiff's burden to show a

probability of prevailing on the merits." (Flatley, supra, 39 Cal.4th at p. 316.) "[T]he

showing required to establish conduct illegal as a matter of law — either through

defendant's concession or by uncontroverted and conclusive evidence — is not the same

showing as the plaintiff's second prong showing of probability of prevailing." (Id. at

                                              13
p. 320, italics added.) Applying Flatley, subsequent courts have reiterated that it is only

in "rare cases in which there is uncontroverted and uncontested evidence that establishes

the crime as a matter of law." (Cross v. Cooper (2011) 197 Cal.App.4th 357, 386, italics

added (Cross).)

       The rare cases in which the exception for illegal conduct has been applied include

(1) a case in which the plaintiff obtained a finding of factual innocence, which

conclusively established that the defendant made a false police report, and the defendant

did not contest that fact (Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696, 703); and

(2) a case in which the defendant conceded that its acts of vandalism in support of animal

rights issues were unlawful (Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon

Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1296). In contrast, courts deny

anti-SLAPP motions when it is not conclusively established or conceded that unlawful

protected activity occurred. (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 712

[defendant did not concede that she engaged in any unlawful activities and there was no

uncontroverted evidence that she did so]; Cross, supra, 197 Cal.App.4th at p. 386

[defendant did not concede criminal conduct and the uncontroverted evidence did not

establish a crime as a matter of law].)

       Zucchet contends that Galardi acted illegally because it is a crime to give false

testimony and make false statements to federal authorities, and this is one of the rare

cases in which uncontroverted or conclusive evidence establishes illegality as a matter of

law. As we will explain, Zucchet's position lacks merit. Galardi has not



                                             14
conceded the falsity of his statements, and the evidence does not conclusively establish

that Galardi made false statements. The falsity of Galardi's statements is still very much

in dispute.

       First, the record contains no evidence of any concession by Galardi that he made a

false statement regarding the $10,000 payment. Zucchet argues that the falsity of

Galardi's statement was uncontested because Galardi's moving papers for his special

motion to strike in the trial court did not affirmatively dispute and disprove the allegation

in Zucchet's complaint that Galardi made false statements. However, in establishing that

Zucchet's complaint arose from activity protected by the anti-SLAPP statute, it was not

Galardi's burden to dispute and disprove the truth of those allegations. (Jarrow, supra,

31 Cal.4th at p. 740 [a defendant in a malicious prosecution action alleging abusive

activity is not required to first establish that his actions are constitutionally protected as a

matter of law, as " '[i]f this were the case then the [secondary] inquiry as to whether the

plaintiff has established a probability of success would be superfluous' "]; DuPont Merck

Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 566 [the truth of the

plaintiff's allegations that the defendant made false statements should be considered

during the second prong analysis in an anti-SLAPP motion, and to do otherwise would be

"placing the cart before the horse"].) As Galardi did not have the burden to establish the

validity of his First Amendment activities as a matter of law under the first prong of the

anti-SLAPP inquiry, it would be unreasonable to interpret his failure to expressly deny

Zucchet's allegations in his moving papers as a tacit concession of illegal activity.

Significantly, at the first opportunity after Zucchet suggested in his opposition papers that

                                               15
Galardi had conceded engaging in illegal activity, Galardi argued in his reply papers that

the evidence did not establish that he made any false statements about the $10,000

payment. On appeal, Galardi has consistently maintained that the evidence does not

prove he made a false statement. Thus, this is simply not a case in which the defendant

has conceded that he engaged in illegal activity.

       Second, uncontested evidence does not establish that Galardi made a false

statement about the $10,000 payment. Although the district court and the Ninth Circuit

both noted the doubtful credibility of Galardi's testimony regarding the $10,000 payment,

that is not the same thing as a conclusive decision that the testimony was false. Indeed,

the district court could not have conclusively rejected the veracity of Galardi's testimony

about the $10,000 payment, as it denied the motion for a judgment of acquittal on

counts 1 and 32 premised on that testimony, concluding that the testimony reasonably

could be relied upon by a jury to conclude that the $10,000 payment occurred. In

addition, Galardi's testimony about the $10,000 payment was corroborated during the

criminal trial by the testimony of his domestic partner, who testified that she observed

Galardi giving $10,000 to Malone. Under those circumstances, there is no basis for

Zucchet's contention that he has conclusively established the falsity of Galardi's

statements about the $10,000 payment with uncontroverted evidence.7



7      We note that in connection with his opposition to the special motion to strike,
Zucchet submitted a document that is described as "the statement of . . . Malone
presented at the sentencing hearing." The document is a five-page, typed statement
signed and initialed by Malone. In the document, Malone states, among other things, that
"[c]ontrary to Mr. Galardi's testimony in the San Diego case, he never gave me any cash
                                            16
       In sum, because Zucchet's malicious prosecution claim against Galardi is based on

Galardi's activities in furtherance of his right to free speech or petition, and this is not the

rare case in which the illegality of those activities is uncontested or conclusively

established, Galardi has satisfied his burden on the first prong on the anti-SLAPP analysis

to show that the complaint arises from activity protected by the anti-SLAPP statute.

C.     Under the Second Prong of the Anti-SLAPP Analysis, Zucchet Has Not
       Established a Probability of Prevailing on His Malicious Prosecution Claim

       Having determined that Galardi satisfied his burden under the first prong of the

anti-SLAPP analysis, we next consider whether Zucchet has met his burden under the

second prong.

       "To satisfy the second prong, 'a plaintiff responding to an anti-SLAPP motion

must " 'state[] and substantiate[] a legally sufficient claim.' " [Citation.] Put another

way, the plaintiff "must demonstrate that the complaint is both legally sufficient and

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

the evidence submitted by the plaintiff is credited." ' " (Oasis West, supra, 51 Cal.4th at

p. 820.) In short, a plaintiff must " 'demonstrate[] a probability of prevailing on the


to give to . . . Inzunza or . . . Zucchet[;] nor did I ever give them any cash." In connection
with the special motion to strike, Galardi made an evidentiary objection to the document,
on which the trial court did not rule. When the trial court does not rule on an evidentiary
objection, we deem the objection to have been overruled. (Reid v. Google, Inc. (2010) 50
Cal.4th 512, 534; Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1476.)
Although Malone's statement is before us as part of the trial court record, it does not
provide conclusive and uncontested evidence of the falsity of Galardi's statements about
the $10,000 payment. Instead, Malone's statement, together with the testimony of
Galardi and his domestic partner about the $10,000 payment, shows that a factual dispute
exists on the issue.

                                               17
claim.' " (Ibid.) If a plaintiff meets this burden, the action is allowed to go forward

despite the fact that it arises from protected activity. (Ibid.)

       Our first step in analyzing whether Zucchet has demonstrated a probability of

prevailing on his claim is to review the elements required to prove malicious prosecution.

"Under the governing authorities, in order to establish a cause of action for malicious

prosecution of either a criminal or civil proceeding, a plaintiff must demonstrate 'that the

prior action (1) was commenced by or at the direction of the defendant and was pursued

to a legal termination in his, plaintiff's, favor [citations]; (2) was brought without

probable cause [citations]; and (3) was initiated with malice [citations].' " (Sheldon Appel

Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871.)

       As we will explain, we find the absence of one of these requirements to be

dispositive here. Given the undisputed facts, Zucchet cannot as a matter of law establish

that the criminal prosecution against him was commenced by, or at the direction of,

Galardi.

       Although a criminal prosecution normally is commenced through the action of

government authorities, a private person may be liable for malicious prosecution under

certain circumstances based on his or her role in the criminal proceeding. "The relevant

law is clear: 'One may be civilly liable for malicious prosecution without personally

signing the complaint initiating the criminal proceeding.' (Centers v. Dollar Markets

(1950) 99 Cal.App.2d 534, 544.) ' "The test is whether the defendant was actively

instrumental in causing the prosecution." ' (Sullivan v. County of Los Angeles (1974) 12

Cal.3d 710, 720; see 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 476,

                                               18
p. 702.) 'Cases dealing with actions for malicious prosecution against private persons

require that the defendant has at least sought out the police or prosecutorial authorities

and falsely reported facts to them indicating that plaintiff has committed a crime.'

(Sullivan v. County of Los Angeles, supra, at p. 720.)" (Greene v. Bank of America

(2013) 216 Cal.App.4th 454, 463-464.)

       The issue here is whether Galardi, as a cooperating codefendant who gave

information to prosecutors about the $10,000 payment and then testified about it pursuant

to his plea agreement with the government, is in the position of someone who was

" 'actively instrumental in causing the prosecution.' " (Sullivan v. County of Los Angeles,

supra, 12 Cal.3d at p. 720.) Specifically, the undisputed evidence is that Galardi spoke

with prosecutors in early 2005 about the $10,000 payment after the criminal proceedings

had already been ongoing for approximately a year and half, and he testified at Zucchet's

trial about the $10,000 payment after he entered into a plea agreement that required him

to cooperate in the prosecution of Zucchet and the other remaining defendants. As we

will explain, under these circumstances the applicable authorities lead us to conclude that

the role Galardi played in Zucchet's prosecution does not give rise to a malicious

prosecution claim as a matter of law.

       First, although sparse California case law describes the type of conduct that will

give rise to a malicious prosecution claim against a private person who assists

prosecutors by providing information and testifying in a criminal proceeding, the one

case to thoroughly consider the matter indicates that merely giving testimony and

responding to law enforcement inquiries in an active criminal proceeding does not

                                             19
constitute malicious prosecution. Specifically, in Cedars-Sinai Medical Center v.

Superior Court (1988) 206 Cal.App.3d 414 (Cedars-Sinai) two witnesses were

approached by the authorities as potential witnesses in an arson investigation in which the

plaintiff was already a suspect, and they gave testimony at the preliminary hearing

against the plaintiff. The court held that the witnesses were not liable for malicious

prosecution based on their testimony and statements to police because they did not

"instigate, nor were they 'actively instrumental in causing,' the prosecution" of the

plaintiff but were merely responding to law enforcement inquiries during an existing

investigation. (Id. at p. 417.)8

       Second, following the lead of our Supreme Court in Zamos v. Stroud (2004) 32

Cal.4th 958 (Zamos), we look to the Restatement Second of Torts (Restatement) for

guidance as to the type of conduct that will give rise to a malicious prosecution claim in

the context of a criminal prosecution.9 According to section 655 of the Restatement, "[a]



8      As Cedars-Sinai discussed, Rupp v. Summerfield (1958) 161 Cal.App.2d 657,
which our Supreme Court cited in Sullivan v. County of Los Angeles, supra, 12 Cal.3d at
page 720, is distinguishable because the defendant had not only testified in a criminal
proceeding but was the person who " 'initiated the proceeding' " by making the original
false police report that brought the plaintiff to the attention of the police. (Cedars-Sinai,
supra, 206 Cal.App.3d at p. 418, quoting Rupp, at p. 663.)

9       In Zamos, our Supreme Court considered whether the tort of malicious prosecution
includes the act of continuing to pursue a civil lawsuit discovered to lack probable cause.
(Zamos, supra, 32 Cal.4th at p. 970.) In its analysis, our Supreme Court relied on section
674 of the Restatement, which identified taking an " 'active part in the initiation,
continuation or procurement of civil proceedings against another' " without probable
cause as a basis for a malicious prosecution claim. (Zamos, at p. 967, fn. 6.) Zamos also
cited Corpus Juris Secundum and American Jurisprudence Second. (Zamos, at p. 967,
fn. 7.)
                                             20
private person who takes an active part in continuing or procuring the continuation of

criminal proceedings initiated by himself or by another is subject to the same liability for

malicious prosecution as if he had then initiated the proceedings." (Restatement, § 655,

p. 413.) More specifically, the Restatement comments that, "In order that there may be

liability under the rule stated in this Section, the defendant must take an active part in

their prosecution after learning that there is no probable cause for believing the accused

guilty. It is not enough that he appears as a witness against the accused either under

subpoena or voluntarily, and thereby aids in the prosecution of the charges which he

knows to be groundless. His share in continuing the prosecution must be active, as by

insisting upon or urging further prosecution." (Restatement, § 655, com. c, p. 414.)

       Other treatises are in agreement that being a witness at trial or providing

information pursuant to a law enforcement inquiry in an ongoing investigation is not the

type of active participation needed to create liability for malicious prosecution. Corpus

Juris Secundum states that "[a]lthough an action for malicious prosecution may have as a

primary basis statements made by the defendant under oath, as a general rule, no liability,

as for malicious prosecution, attaches merely by reason of testifying as a witness for the

prosecution" (54 C.J.S. (2010) Malicious Prosecution, § 20, p. 752, fn. omitted) and that

"[m]erely providing false information to law enforcement officials in response to those

officials' queries during an ongoing investigation does not amount to instigating a

prosecution." (Id. § 19, p. 20.) American Jurisprudence Second states that "[g]enerally,

one who merely testifies as a witness does not, by that act, institute or continue a

prosecution for the purposes of a malicious prosecution claim" (52 Am.Jur.2d (2000)

                                              21
Malicious Prosecution, § 27, p. 157), and that "[i]f a citizen presses the police to apply

for a complaint or takes some affirmative action to encourage the prosecution by way of

advice or pressure, as opposed to merely providing information, he or she is liable for

malicious prosecution . . ." (52 Am.Jur.2d, supra, Malicious Prosecution, caution,

foll. § 23, p. 156, italics added).

       Zucchet argues that Galardi was actively instrumental in causing the prosecution,

and thus is liable for malicious prosecution, because he offered information and

testimony about the $10,000 payment that transformed the nature of the government's

case against Zucchet and caused the district court to deny the motion for a judgment of

acquittal on counts 1 and 32 and to order a new trial on those counts. Zucchet argues that

although Galardi admittedly did not have an active role in initiating the government's

prosecution against Zucchet, Galardi was an active participant in causing the continuation

of the prosecution against Zucchet when he introduced the concept of the $10,000

payment into the case. As we will explain, the argument lacks merit.

       We begin by pointing out that we have no dispute with several of the predicates to

Zucchet's argument. As Zucchet correctly points out, someone may be liable for

malicious prosecution for his or her active role in the malicious prosecution of only a

portion of a proceeding. (See Singleton v. Perry (1955) 45 Cal.2d 489, 497 [" ' "it is not

necessary that the whole proceeding be utterly groundless" ' "]; Silas v. Arden (2012) 213

Cal.App.4th 75, 89 [in the context of a civil lawsuit, a "claim for malicious prosecution

need not be addressed to an entire lawsuit"].) Further, the Restatement acknowledges

that someone may be liable for maliciously continuing a prosecution rather than for

                                             22
maliciously initiating a prosecution. (Restatement, § 655, p. 413 [liability for malicious

prosecution arises when a person "takes an active part in continuing or procuring the

continuation of criminal proceedings initiated by himself or by another"].) Thus, if all of

the other requirements for a malicious prosecution claim were present as to Galardi, it

would be no bar to the claim that Galardi had a part in advancing only a portion of the

prosecution (i.e., counts 1 & 32) or that his role came at a later stage in the criminal

proceedings (i.e., in 2005 when he disclosed the $10,000 payment). In addition, we

agree, as a factual matter, that Galardi's testimony about the $10,000 payment did

transform the focus of the prosecution to some extent, at least insofar as the superseding

indictment did not specifically describe the $10,000 payment.10 It is also clear from a

reading of the district court's order that Galardi's testimony about the $10,000 payment

was the evidence that caused the district court to grant a new trial on counts 1 and 32

rather than ordering an acquittal on those counts.

       However, despite the important role that Galardi's testimony about the $10,000

payment played in the course of Zucchet's prosecution, Galardi's role was always limited

to that of a trial witness and someone who provided information to authorities in an

ongoing investigation. Indeed, as Zucchet describes the factual basis for his argument,

Galardi was "actively involved in causing the continuation of Zucchet's criminal

prosecution" because, after entering into a plea agreement, "[Galardi] met with the



10      We note, however, that Galardi's testimony about the $10,000 payment did not
result in any new counts being added to the superseding indictment, as counts 1 and 32
covered honest services fraud occurring in April 2003.
                                             23
prosecution and told them his false story about a $10,000 cash bribe, and then he testified

falsely about the bribe when called as a government witness at trial."

       As we have explained, to create liability for malicious prosecution it is not enough

to provide information to authorities during an ongoing criminal investigation. The

person must "take[] some affirmative action to encourage the prosecution by way of

advice or pressure, as opposed to merely providing information." (52 Am.Jur.2d, supra,

Malicious Prosecution, caution, foll. § 23, p. 156.) Further, merely acting as a witness at

trial — even a very valuable witness for the prosecution — does not make someone an

active participant subject to liability for malicious prosecution. "It is not enough that [the

person] appears as a witness against the accused either under subpoena or voluntarily and

thereby aids in the prosecution of the charges which he knows to be groundless. His

share in continuing the prosecution must be active, as by insisting upon or urging further

prosecution." (Restatement, § 655, com. c, p. 414, italics added.) "[A]s a general rule,

no liability, as for malicious prosecution, attaches merely by reason of testifying as a

witness for the prosecution" (54 C.J.S., supra, Malicious Prosecution, § 20, p. 752.)

       There is no evidence or allegation that Galardi insisted upon or urged further

prosecution of the case against Zucchet, or that he gave advice to the prosecutors or

placed pressure on the government to continue the case against Zucchet. Although

Galardi's testimony was valuable to the government and had the practical effect of

causing the district court to deny the motion for a judgment of acquittal on counts 1 and

32, the significance of Galardi's testimony does not transform Galardi into an active

participant who urged that the government continue to prosecute Zucchet.

                                             24
       As 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, Zucchet's malicious

prosecution against Galardi lacks merit. Zucchet has accordingly failed to meet his

burden under the second prong of the anti-SLAPP analysis to state and substantiate a

legally sufficient claim.11

       In sum, because Galardi has established his burden under the first prong of the

anti-SLAPP statute to establish that Zucchet's malicious prosecution claim arises from

protected activity, and Zucchet has not met his burden to make a prima facie case that he

has a meritorious malicious prosecution claim against Galardi, we conclude on our de

novo review that the trial court erred in denying the special motion to strike under the

anti-SLAPP statute.




11      Because we have concluded that Zucchet cannot satisfy the requirement to show
that the criminal prosecution was commenced or continued at the direction of Galardi, we
need not and do not consider the other elements of malicious prosecution that Galardi
contends Zucchet cannot establish, including whether the criminal prosecution terminated
in Zucchet's favor and whether Galardi acted without probable cause.

                                            25
                                      DISPOSITION

       The order denying the special motion to strike is reversed, and this matter is

remanded with directions for the trial court to enter an order granting the special motion

to strike.


                                                                                  IRION, J.

WE CONCUR:



BENKE, Acting P. J.



O'ROURKE, J.




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