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Prevailed on anti-SLAPP, time for summary judgment?

San Francisco, CA |

Prevailed as a pro per plaintiff on an anti-SLAPP motion for malicious prosecution. What are the chances of prevailing on a summary judgment with the same evidence?

Not interested in settling, though they want to. I would rather just let them default.

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Attorney answers 4

Best Answer
Posted

Don't let emotion overrule your common sense, if you have the opportunity to settle the case for a reasonable amount, less than you might get at trial, knowing you will save on costs and stress, then settle.
As far as the MSJ, the court must view the evidence in light most favorable to the oppostion and you must show that even when doing that there is no disputable factual scenario which would require the judge to deny the MSJ, thereby entitling you to judgment as a matter of law, therefore the MSJ's are very difficult to win! Give it a try if you think you can win and it might even stimulate a better settlement offer before the MSJ is heard?

Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only.

Posted

Impossible for anyone here to answer that question. Summary judgments have a different standard than a slapp motion. It is very difficult for a pltf to win a summary judgment. You should consult with a lawyer, and maybe consider option of settlement vs cost and time and risk of pursuing case further.

Posted

As my colleagues have pointed out, your motion would have two problems. The court's order that you have enough evidence to get to trial does not mean that you are entitled to prevail. You cannot obtain judgment without showing damages, which was not in issue on the anti-SLAPP motion.

Beware successful litigant's syndrome: the tendency to believe that, because the court decided in your favor on one thing, it will decide in your favor on everything.

Asker

Posted

Element of MP includes damages so I thought I established a prima facie case for damages. I would ask that punitive damages be bifurcated to jury. Any downside to the MSJ? It is my understanding that prevailing on anti-SLAPP immunized me from any counter-MP.

James Carl Eschen III

James Carl Eschen III

Posted

You may have established a right to damages, but you did not show how much you had been damaged. Especially given that one element of damages is emotional distress, only a jury can decide that. If you want judgment now, you would get $1.00. One of the requirements of malicious prosecution is malice. You have shown evidence of malice, you may even have strong evidence of malice, but you have not established it. There are two downsides: 1. Motions for summary judgment are time consuming and expensive. 2. You can't win.

Herb Fox

Herb Fox

Posted

There is a huge difference between showing a "probability" of prevailing (the anti-SLAPP standard) and showing that you must prevail as a matter of law, including as to the amount of damages you are entitled to (the msj standard). It is also not clear what you mean by letting them default. Finally, no judge will allow you to obtain a judgment by msj and then proceed to a jury trial on punitives for many reasons. One is that the trial on punitives will require you to put on your entire case, so there is no efficiency in granting an msj.

Posted

Congratulations on prevailing on the anti-SLAPP motion.
You left out one important factor: the defendant(s) have the option to appeal the ruling, assuming that there is still time for them to do so. If they do appeal, your case will be hung up at the appellate court for as long as 18 months or more, during which time you will not be able to litigate in the trial court.

Nothing contained in this communication is intended to be, or shall be deemed as, legal advice, counsel, or services to on or behalf of any person or any entity. Usage of the Avvo website is not intended to and shall not create any obligation or relationship between the user and the Law Office of Herb Fox, including but not limited to, an attorney-client relationship. Further, the communications on this website between you and the Law Office of Herb Fox may not be privileged or confidential. Finally, your situation may be governed by deadlines that may or may not have already lapsed, and you may lose your rights if you do or did not act within those deadlines.

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