SUPERIOR COURT OF CALIFORNIA,

COUNTY OF SAN DIEGO

HALL OF JUSTICE
TENTATIVE RULINGS - January 23, 2018

EVENT DATE: 01/26/2018 EVENT TIME: 01:30:00 PM DEPT.: C-72

JUDICIAL OFFICER:Timothy Taylor

CASE NO.: 37-2017-00031570-CU-NP-CTL

CASE TITLE: BREEZE VS BAER [IMAGED]

CASE CATEGORY: Civil - Unlimited CASE TYPE: Non-PI/PD/WD tort - Other

EVENT TYPE: SLAPP / SLAPPback Motion Hearing

CAUSAL DOCUMENT/DATE FILED: Joinder to Motion and Supporting Declarations, 11/30/2017

Tentative Ruling on Special Motion to Strike the Complaint (Code of Civil Procedure section
425.16) and Joinder in Motion
Breeze v. Baer, Case No. 2017-031570
Trial Case in Underlying Case No. 2013-067261: October 21-29, 2014, Dept. 72
Full Affirmance in Underlying case (D067704): October 19, 2016
Current case filed: August 25, 2017
Current Motions January 26, 2018, 1:30 p.m., Dept. 72

1. Overview and Procedural Posture.

A. The underlying case (No. 2013-067261) was a dispute between a small K-6 private school in La Jolla
and the mother of students who formerly attended the school. She alleges she provided IT services in
exchange for free tuition, and that the school and its headmistress reneged on the deal. There was a
cross action arising from plaintiff's alleged actions (and those of her husband* and their LLC) regarding
the school's IT systems after the dispute arose, and from their failure to pay about $51,000.00 in tuition
for two years. The case was filed in September of 2013, and was assigned to Judge Meyer. ROA 5.
Judge Meyer made several rulings in the case. ROA 12, 48, 72, 73, 98, 114. However, when the case
finally came on for trial, Judge Meyer was unavailable due to being in trial in another matter. Thus was
the case assigned to Dept. 72. ROA 153-155.
The case came to trial on the first amended complaint (ROA 74) and the first amended cross-complaint
(ROA 66).
On October 21, 2014, the court heard argument and made rulings on 17 motions in limine (ROA 171),
and a jury was then selected and sworn. The parties gave opening statements on the morning of
October 22, following which both sides made non-suit motions as follows:
Plaintiff attacked the defendants' amended cross-complaint: count 3 (CFAA, 18 USC § 1030), and count
4 (fraud).
Defendants attacked the remaining counts of the amended complaint, count 1 (breach of contract);
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count 2 (breach of implied in fact contract); count 3 (quantum meruit); count 6 (fraud by concealment);
count 9 (negligent misrepresentation); count 10 (negligence); count 11 (violation of Penal Code section
496) and counts 12 and 13 (unjust enrichment and declaratory relief, respectively). Plaintiff's counsel
confirmed that the following counts have been dismissed or are not being pursued: count 4 (good faith
and fair dealing); count 5 (copyright infringement); count 7 (intentional interference with prospective
economic advantage); count 8 (intentional misrepresentation); and that portion of count 10 which alleged
negligent infliction of emotional distress.
Both sides urged the court to consider the briefing on the motions in limine as the briefing on the
foregoing nonsuit motions. Additional oral argument was presented. The motions were then submitted.
The court decided the motions in a detailed written order filed on the afternoon of October 22, ROA 260,
which is incorporated herein. The motions were denied in part and granted in part; the denials were
without prejudice to the motions being renewed after the presentation of evidence. With regard to
plaintiff's motion as to the CFAA count in the amended cross-complaint, the court's ruling was as follows:
"Denied as to CFAA claim, 18 USC section 1030. The court concludes there was enough set forth in the
defense opening statement to justify the jury hearing the evidence on this claim." ROA 260, page 7.
Plaintiff thereafter began her case in chief, which went forward with six witnesses being called and
several documents and emails and other materials being received into evidence. Plaintiff rested at about
3:10 p.m. on October 23.
The court heard defendants' renewed non-suit motion on Friday, October 24 at 10:30 a.m. The motion
was denied. Plaintiff did not renew her nonsuit motion as to the CFAA claim.
The defense case commenced and concluded on Monday, October 27. This was followed by a rebuttal
case. The jury was instructed on Tuesday, October 28. ROA 191. Counsel then argued; the court felt
that neither side made effective use of the instructions or the special verdict in their closing arguments.
The jury returned a verdict on Wednesday, October 29, 2014. ROA 193. In general, it was in plaintiff's
favor, although there was a substantial award on the cross-complaint as well. The court directed
counsel to meet and confer regarding the form of judgment in light of the mixed results. Perhaps
predictably, the parties failed to reach accord on this subject. This required the court to enter separate
judgments on the complaint and cross-complaint. ROA 208-209.
With regard to the CFAA count in the amended cross-complaint, the jury answered question 48 of the
Special Verdict "yes" as to Rimma Breeze, but "no" as to the other cross-defendants. The next question,
raising the issue of authorization, was answered "no." ROA 193, page 10. The vote was not recorded
as the result of counsel's waiver of polling. ROA 298, page 2.

There were several post-trial motions; they are addressed in the court's rulings of January 30, 2015
(ROA 276). The court reiterates a portion of that ruling:
This lawsuit illustrates several interrelated problems with modern-day litigation:
First, that "[a]ll too often attorney fees become the tail that wags the dog in litigation." Deane
Gardenhome Assn. v. Denktas (1993) 13 Cal.App.4th 1394, 1399. In this case, both sides' quest to "up
the ante" resulted in costs and attorneys' fee well beyond the true value of the case, as well as ill-will and
hardened feelings which made compromise on even the most obvious issues impossible. Both sides
completely lost their perspective by inserting meritless tort theories and statutory claims into what was
really a simple case.

Second, and in a related vein: lawyers are supposed to be problem solvers as well as advocates, and
when the problem-solving role is abandoned in favor of advocacy, more profound problems arise.
Third, and along the same lines: all too often, lawyers focus too much on (by way of example) receiving
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a complete response to form interrogatory 15.1, and not enough time on careful attention to the form of
special verdict. Such was the case here, as the jury discovered a flaw in same which went unnoticed by
the parties as the result of the unnecessarily combative stances they had long-since assumed.
Fourth: when a jury speaks, it is well for the parties to listen. The parties did not do so here, and the
post-trial motions (and opposition) continue to reflect an unwillingness to accept the collective wisdom of
the jury. The parties have continued to make a very simple situation unnecessarily complicated. The
obvious resolution (setting aside for the moment the issue of the memorandum of costs) is for
defendants to send plaintiff a check for $44,086.00, and for the parties to thereafter exchange
Acknowledgments of Full Satisfaction (Judicial Council form EJ-100) in light of the offset ($95,336 on the
complaint minus $51,250 on the cross action). Instead, the parties saddled the court with additional
unnecessary work.
In this case, the court did not find Rimma Breeze to be a particularly credible witness. Some of her
testimony seemed scripted, and other portions (such as the part relating to the return of the passwords)
was simply not believable. She plainly inveigled herself into what amounted to a full time position with
the school as a way of obtaining for herself a "resume booster." What she ended up doing was far
beyond anything contemplated by the school at the outset of the "relationship." The problem for the
school was that it, and Ms. Baer in particular, allowed this to occur through inattention and a complete
failure to rein in the "runaway" nature of plaintiff's activities for far too long. Baer failed to pin down the
details at the key meeting of July 11, and then allowed the situation to escalate for far too long without
addressing it head-on. By the time she delivered the tuition bill and ended the "relationship," the arising
of a dispute was fait accompli. The jury evidently concluded that, as between the two key participants,
Ms. Baer was the more responsible for the situation reaching the point it did, and this led to the verdict.
The court cannot say that this conclusion was unsupported by the evidence.
Following the post-trial rulings, appellate proceedings were undertaken. This court was affirmed in full in
October of 2016 in Case No. D067704 (Unpub. Opin. of Nares, J.).

The judgment in the underlying case was satisfied in full before the end of 2016. ROA 324-326.
B. In August of 2017, the same plaintiffs filed another lawsuit against the same defendants and their
lawyers, for damages for the malicious prosecution of the CFAA claim in the cross-complaint and
amended cross-complaint in Case No. 2013-067261. ROA 1, complaint, paragraphs 29, 116-120. The
complaint is based solely on defendants' prosecution of the CFAA claims. Id.
The current case was assigned to Dept. 72. Despite their net success in the underlying case, plaintiffs
were apparently unhappy with this assignment, and filed a challenge under Code of Civil Procedure
section 170.6. ROA 8. The court denied the challenge under the "continuation of prior litigation"
exception to the peremptory challenge rules. ROA 9. Plaintiffs sought writ relief from the 4th DCA, Div.
1, which was denied on October 31, 2017. ROA 17. Plaintiffs then tried to dismiss the case, but the
dismissal was refused because plaintiffs attempted to attach conditions to it. ROA 18.
Defendants, who have answered (ROA 15), have now filed and joined a special motion to strike the
complaint. ROA 23, 34, 39. Plaintiffs sought to compel the depositions of attorneys Scully and
Williamson while the motion was pending despite the general prohibition in Code of Civil Procedure
section 425.16 on doing so. ROA 36, 38. Defendants filed opposition. ROA 37. The court reviewed the
papers, and denied the request on December 7, 2017. ROA 40.
Plaintiffs filed detailed opposition to the special motion to strike. ROA 42-47. The opposition papers
focus solely on the CFAA claim. ROA 42, pp. 1:2-4, 1:10, 1:13-14, 1:23, 9:25-11:6; ROA 45, p. 2:1-2;
ROA 47, pp. 2, 6, 8. Defendants filed reply. ROA 48-51. The court has reviewed the papers.
2. Applicable Law.

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A. The Legislature enacted Code of Civil Procedure section 425.16 to deter lawsuits "brought primarily
to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of
grievances." Code of Civil Procedure § 425.16(a). "Because these meritless lawsuits seek to deplete
'the defendant's energy' and drain 'his or her resources' [citation], the Legislature sought ' "to prevent
SLAPPs by ending them early and without great cost to the SLAPP target." ' " Flatley v. Mauro (2006)
39 Cal.4th 299, 312.

Under section 425.16, a court "shall" grant a defendant's motion to strike a cause of action "arising from"
an act "in furtherance of" the defendant's constitutional petition or free speech rights unless the plaintiff
establishes a probability of prevailing on the claim. Code of Civil Procedure § 425.16(b)(1). To achieve
the goal of encouraging participation in matters of public significance, the Legislature has mandated that
courts construe this statute "broadly" in favor of the moving party. Code of Civil Procedure § 425.16(a);
Kibler v. Northern Inyo County Local Hosp. Dist. (2006) 39 Cal.4th 192, 197.
In ruling on a special motion to strike, the trial court engages in a multistep process. First, the court must
determine whether the defendant met its burden to show the challenged cause of action arises from
constitutionally protected activity as defined in the statute. Navellier v. Sletten (2002) 29 Cal.4th 82, 88
(Navellier). If this burden is met and the plaintiff asserts his action and/or claim is exempt under the
commercial speech or public interest exemptions set forth in section 425.17, the plaintiff then has the
burden to show the applicability of these exemptions. See Simpson Strong-Tie Co., Inc. v. Gore (2010)
49 Cal.4th 12, 22-26; Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 717. If the plaintiff does
not make this showing, the plaintiff must then meet his burden to establish a probability of prevailing on
the claim. Navellier, supra, 29 Cal.4th at 88.
Subdivision (e) of section 425.16 sets out four categories of activities that are "in furtherance of" a
defendant's free speech or petition rights under the United States or California Constitution in connection
with a public issue. These acts are (1) written or oral statements made before a legislative, executive, or
judicial proceeding; (2) written or oral statements made in connection with an issue under consideration
or review by a legislative, executive, or judicial body; (3) written or oral statements made in a place open
to the public or in 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 free speech in connection with a public
issue or an issue of public interest. Code of Civil Procedure § 425.16(e).
B. In determining whether a claim arises from protected activity [the first step of the analysis], a court
must "disregard the labeling of the claim . . . and instead 'examine the principal thrust or gravamen of a
plaintiff's cause of action to determine whether the anti-SLAPP statute applies. Courts assess the
principal thrust by identifying '[t]he allegedly wrongful and injury-producing conduct . . . that provides the
foundation for the claim.' [Citation.]" Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264,
1271-1272, italics added; see also Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 269-270.
"The anti-SLAPP statute's definitional focus is [on] the defendant's activity that gives rise to his or her
asserted liability-and whether that activity constitutes protected speech or petitioning." Navellier, supra,
29 Cal.4th at 92.
This threshold "arising from" or "gravamen" or "principal thrust" analysis has proven to be quite thorny
and difficult. Trial courts and even courts of appeal have struggled with it; certainly this court is among
them. But see Chaker v. Mateo (2012) 209 Cal.App.4th 1138; Yee v. Cheung, (2013) 220 Cal.App.4th
184.
The Supreme Court has added significant gloss to the SLAPP jurisprudence in recent months. In Baral
v. Schnitt (2016) 1 Cal.5th 376, the Supreme Court held that trial courts may strike out lines and
paragraphs of complaints, even if doing so does not defeat an entire pleaded "mixed" cause of action.
And in Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1060, the Supreme
Court held as follows:

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"What nexus must a defendant show between a challenged claim and the defendant's protected activity
for the claim to be struck? As we explain, a claim is not subject to a motion to strike simply because it
contests an action or decision that was arrived at following speech or petitioning activity, or that was
thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only
if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a
step leading to some different act for which liability is asserted."

C. Turning to the second step of the analysis: to establish a probability of prevailing under Code of Civil
Procedure section 425.16, a plaintiff must make a prima facie showing of facts that would, if proved at
trial, support a judgment in its favor. ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010.
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 ... is credited." ' "
Vargas v. City of Salinas (2009) 46 Cal.4th 1, 20.
In making this showing, the plaintiff cannot rely solely on the allegations in the complaint and must
present evidence that would be admissible at trial. ComputerXpress, Inc. v. Jackson, supra, 93
Cal.App.4th at 1010; see Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 679. However, the
plaintiff's burden to show a "probability of prevailing is not high: We do not weigh credibility, nor do we
evaluate the weight of the evidence. Instead, we accept as true all evidence favorable to the plaintiff and
assess the defendant's evidence only to determine if it defeats the plaintiff's submission as a matter of
law." Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700.
In deciding whether a prima facie case has been established, the court considers the pleading and
evidentiary submissions of both parties. Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th
90, 105. A plaintiff meets his burden to show a probability of prevailing on a cause of action if any part of
a claim has merit. Id. at 100, 106. The standard is really one of "minimal merit." Navellier, supra, 29
Cal.4th at 89.
D. The essential elements of a malicious prosecution claim are: (1) an action commenced by or at the
direction of the defendant; (2) pursued to a legal termination favorable to the plaintiff; (3) brought without
probable cause; and (4) initiated with malice. Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1018;
Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 740. If any of these elements is missing, a malicious
prosecution action fails as a matter of law. Pender v. Radin (1994) 23 Cal.App.4th 1807, 1813-1814.
The probable cause element of the malicious prosecution claim "calls on the trial court to make an
objective determination of the 'reasonableness' of the defendant's conduct, i.e., to determine whether, on
the basis of the facts known to the defendant, the institution of the prior action was legally tenable. The
resolution of that question of law calls for the application of an objective standard to the facts on which
the defendant acted. (Citation omitted). Because the malicious prosecution tort is intended to protect an
individual's interest 'in freedom from unjustifiable and unreasonable litigation' (citation omitted), if the trial
court determines that the prior action was objectively reasonable, the plaintiff has failed to meet the
threshold requirement of demonstrating an absence of probable cause and the defendant is entitled to
prevail." Sheldon Appeal Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 878.
"In determining whether the prior action was legally tenable, i.e., whether the action was supported by
probable cause, the court is to construe the allegations of the underlying complaint liberally, in a light
most favorable to the malicious prosecution defendant." Yee v. Cheung, supra, 220 Cal.App.4th at 200.
The malice element for the malicious prosecution claim "relates to the subjective intent or purpose with
which the defendant acted in initiating prior action. (Citation omitted). The motive of the defendant must
have been something other than that of bringing a perceived guilty person to justice or the satisfaction in
a civil action of some personal or financial purpose. (Citation omitted). The plaintiff must plead and prove
actual ill will or some improper ulterior motive. (Citation omitted). It may range anywhere from open
hostility to indifference." Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 484, italics in
original. Malice may not be inferred from a lack of probable cause alone, since whether the underlying
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action lacked legal tenability, as measured objectively, does not "logically or reasonably permit the
inference that such lack of probable cause was accompanied by the actor's subjective malicious state of
mind." Id. at 498-499.
E. A violation of the CFAA occurs where someone accesses a computer "without authorization, or
exceeds authorized access ... "18 USC § 1030(a)(4). "Without authorization" means when permission is
rescinded and the defendant uses the computer anyway. See United States v. Nosal (9th Cir. 2016) 844
F.3d 1024, 1029 (one uses a computer "without authorization" under the CFAA when permission is
rescinded "and the defendant uses the computer anyway").
3. Evidentiary Objections.
Evidentiary objections were filed by defendants along with a proposed order (ROA 49-50). The court has
ruled separately on the objections, initialing each ruling.

4. Discussion and Rulings.

A. The special motion to strike the complaint by defendant Scully is granted. The complaint is stricken in
its entirety as to Scully.
The complaint pleads a single count for malicious prosecution against Scully, as well as co-defendants
Baer, The Evans School, and Gordon, Rees. The count is based solely on defendants' prosecution of
the CFAA claim in Case No. 2013-067261. ROA 1, paragraphs 29, 116-120. The opposition asserts the
count is also based on defendants' prosecution of a similar CFAA claim in the first action identified in the
complaint. E.g., ROA 42, pp. 9:25-10:14.
It is well settled that a malicious prosecution claim is subject to being stricken as SLAPP suits. See
Jarrow Formulas, Inc. v. LaMarche, (2003) 31 Cal.4th 728, 734-735 ("...malicious prosecution causes of
action fall within the purview of the anti-SLAPP statute.") Plaintiffs do not dispute that their malicious
prosecution claim is protected activity within the meaning of Code of Civil Procedure section 425.16 and
is subject to being stricken as a SLAPP suit. As such, Scully meets his initial burden to invoke the
protection of the anti-SLAPP statute.
Turning to the second step in the analysis, plaintiffs cannot establish a probability of prevailing on the
malicious prosecution count pled against Scully. In this regard, plaintiffs failed to meet their burden of
proof to establish two essential elements of the count, i.e., that Scully initiated and maintained the CFAA
claim without probable cause, and that Scully initiated and maintained the CFAA claim with malice.

First (regarding the second step), plaintiffs failed to meet their burden to establish that Scully initiated
and maintained the CFAA claim without probable cause. Rather, Scully had probable cause to bring
and maintain the CFAA claim as borne out by the court's denial of plaintiff's nonsuit motion on that claim.
The nonsuit motion was reviewed for the existence of "substantial evidence" including evidence that was
"reasonable, credible, and of solid value". ROA 23, NOL, Ex. 13, p. 2. The nonsuit motion was denied,
after hearing the defense opening statement, because "there was enough set forth in the opening
statement to justify the jury hearing the evidence on the claim." Id., p. 3. The denial was on the merits
and is suggestive of a basis for probable cause. As such, Scully obtained an interim victory on the CFAA
claim due to the nonsuit motion ruling. Thus, he initiated and maintained the CFAA claim with probable
cause. See Hart v. Darwish (2017) 12 Cal.App.5th 218, 226-227 (an order denying a nonsuit motion is
conclusive so long as the ruling is based on the merits).
Also, Scully did not "concede" that he lacked probable cause by failing to oppose the motion to dismiss
the CFAA claim in the first action in federal court, by not producing discovery responses to support the
CFAA claim, and by Scully's comment in opening statement that Mr. Breeze was a party since he signed
the contract to pay tuition. See ROA 42, pp. 10-12. The CFAA claim was not abandoned; it was again
brought in Case No. 2013-067261 (the second action identified in the complaint) after Mrs. Breeze filed
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her own complaint. The failure to produce discovery responses to support the CFAA claim is not
evidence that Scully lacked evidence to bring and maintain the CFAA claim. Rather, the failure would
properly have given rise to a motion to compel, and possibly a request to exclude or limit the evidence at
trial. The comment in Scully's opening statement was not a ground for Mrs. Breeze's nonsuit motion, nor
did she move to dismiss the CFAA claim on nonsuit motion as to Mr. Breeze or BVM. See ROA 23,
Williamson Declaration, paragraph 13 ("I was present during Mr. Scully's opening statement to the jury.
After Mr. Scully gave his opening statement, Plaintiffs moved for a non-suit motion on Defendants' CFAA
claim. Plaintiffs did not raise any specific remarks or statements by Mr. Scully during his opening
statement as the grounds for their non-suit motion, nor did they move to dismiss the CFAA claim as to
Colin and BVM only on a non-suit motion or directed verdict motion.")
In essence, plaintiffs have not met their burden to prove that Scully lacked probable cause by initiating
and maintaining the CFAA.
Second (regarding the second step), plaintiffs failed to meet their burden to establish that Scully initiated
and maintained the CFAA claim with malice. In this regard, there is no admissible evidence that Scully
admitted that the CFAA claim was brought in bad faith. Also, there is no evidence that Scully believed
that the CFAA claim was invalid or initiated solely due to hostility or ill will. Further, the accusations and
claims related in the opposition as purported malice (ROA 42, pp. 14:21-15:23) are not supported by
admissible evidence. Moreover, Scully declares that he "did not prosecute, maintain, or defend The
School Lawsuit or the Breeze Lawsuit because of ill will or malice towards Plaintiffs." See ROA 23,
Scully Declaration, paragraph 3. In addition, he declares that "[a]t all times, I believed there were
reasonable and tenable theories against Plaintiffs, including inferences from the evidence that Plaintiffs
failed to return all computer equipment that belonged to The School, failed to turn over all passwords to
The School's systems, and had wrongfully accessed our clients' technology systems." Id., paragraph 2.
In essence, there is no evidence that Scully filed and maintained the CFAA claim with malice. While the
court previously expressed its belief that the CFAA claim was unnecessary to a just resolution of the
dispute, that is a different inquiry than whether the claim was advanced with malice and without probable
cause.
Accordingly, Scully's special motion to strike is granted. Defense counsel is ordered to submit a form of
judgment of dismissal of the complaint consistent with the foregoing.
Scully, as the prevailing party on the special motion to strike, is entitled to an award of reasonable award
of attorneys' fees and costs. An award of attorneys' fees and costs may be addressed in a future noticed
motion.

B. The joinder by defendants Baer, The Evans School, and Gordon, Rees in Scully's special motion to
strike is granted. ROA 39. Baer, The Evans School, and Gordon, Rees are similarly situated to Scully
with regard to Scully's special motion to strike. E.g., ROA 1, complaint, paragraphs 1, 116-120. The
joinder furthers judicial economy and avoids duplicative motions. A co-defendant is allowed to join
another defendant's special motion to strike where the complaint, as here, challenges protected activity.
See Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660-661.
Thus, the joinder is granted, and the special motion to strike the complaint is granted as to Baer, The
Evans School, and Gordon, Rees. The complaint is stricken in its entirety as to Baer, The Evans School,
and Gordon, Rees. Defense counsel is ordered to submit a form of judgment of dismissal of the
complaint consistent with the foregoing.
Baer, The Evans School, and Gordon, Rees, as the prevailing parties on the special motion to strike, are
entitled to an award of reasonable award of attorneys' fees and costs. An award of attorneys' fees and
costs may be addressed in a future noticed motion.
C. Litigation among these parties has been pending for about five years and, "[a]t some point litigation
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must come to an end. That point has now been reached." Hi-Desert Med. Ctr. v. Douglas (2015) 239
Cal.App.4th 717, 738, citing Facebook, Inc. v. Pac. Northwest Software, Inc. (9th Cir. 2011) 640 F.3d
1034, 1042. Terminating this litigation at this point (at least at the trial level) will advance the signal
policies of both the anti-SLAPP law and the longstanding limitations on the tort of malicious prosecution.
The Legislature has determined, by enacting Code of Civil Procedure section 425.16, that certain
categories of cases should be dismissed summarily without great expense. And courts have determined
that unfettered access to the courts can only be insured if the tort of malicious prosecution is
circumscribed, and such actions allowed to proceed in only very limited circumstances. See, e.g.
Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872 ("courts have long recognized that the
tort has the potential to impose an undue "chilling effect" on the ordinary citizen's willingness to ... bring
a civil dispute to court, and, as a consequence, the tort has traditionally been regarded as a disfavored
cause of action." This court has concluded, having presided over the earlier trial, that the underlying
CFAA claim, though unsuccessful, was objectively reasonable. Accordingly, the special motion to strike
and the joinder in same are granted.

__________________
* Cross-defendant Colin Breeze is an attorney, admitted to the California Bar in 2000. He testified he is
an "investor" now.

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