California, United States of America
The following excerpt is from Lutge v. Tong, A127358, No. CGC-09-489909 (Cal. App. 2011):
" 'In order to establish a probability of prevailing on the claim ( 425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must " 'state[] and substantiate[] a legally sufficient claim.' " [Citations.] 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." [Citations.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant ( 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim. [Citation.]' [Citations.]" (Taus v. Loftus (2007) 40 Cal.4th 683, 713-714.)
B. Malicious Prosecution.
To establish a claim for malicious prosecution, a plaintiff must plead and prove that the prior action was (1) commenced by or at the direction of the defendant and was pursued to a legal termination in the plaintiff's favor; (2) initiated or prosecuted without probable cause; and (3) initiated with malice. (Zamos v. Stroud (2004) 32 Cal.4th 958,
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