The standard for demonstrating a probability of success on a claim that a party seeks to dismiss on anti-SLAPP grounds has defied any clear definition. In Booker v. Rountree, case no. G038083 (4th Dist. Oct. 4, 2007), the court finds the standard is met under a quasi-summary judgment analysis — it is enough that the parties’ declarations gave competing versions of the facts and that Booker’s version, if believed, would lead to success.
First, the facts. Two wheelchair-bound plaintiffs — Gunther and Rountree — filed separate lawsuits against Booker for violations of the Unruh Act relating to inaccessibility of Booker’s restaurant to persons in wheelchairs. Both were represented by the same lawyer. However, Rountree did not file his case until Booker had already settled with Gunther. Booker cross-claimed for abuse of process, alleging that Rountree deliberately delayed filing suit until after Booker settled with Gunther in order to obtain a second settlement for the same violations. The trial court denied Rountree’s anti-SLAPP motion under Code of Civil Procedure section 425.16, and the Court of Appeal affirms.
The cross-claim meets the first prong of the anti-SLAPP test for dismissal because the cross claim arises from the underlying litigation. However, Booker succeeded at demonstrating a probability of success on the merits.
The evidence produced is sufficient to permit inferences that Rountree knew of the Gunther suit but deliberately delayed in order to avoid consolidation of the suits and to enhance recovery through multiple settlements. Rountree’s declaration that he had no knowledge of the Gunther suit until after he filed his own is not necessarily the version of events that will prevail at trial. Further, the litigation privilege of Civil Code section 47 is no obstacle because the alleged conduct is not a communicative act and therefore is not included within the privilege.
CORRECTION (10/9/07): Thanks to commenter Richard, who points out that Rountree had actually filed his case while Gunther’s was still pending and that the delay was in not serving the summons until after Gunther settled.
The Rountree suit was filed in September, 2005, as was the other lawsuit against Booker, the Gunther action. It was not served until after settlement of the Gunther case.