#### David FABBRINI, Plaintiff, v. CITY OF DUNSMUIR, John Fisher, Bill Sanford, Keith Anderson, and Does 1 through 10, inclusive, Defendants.

No. 2:07-CV-1099-GEB-CMK.

United States District Court, E.D. California.

Feb. 12, 2008.

*1047Tania Beth Rose, Law Office of Tania Rose, San Francisco, CA, for Plaintiff.

Bruce Aan Kilday, Cori Rae Samo, Angelo, Kilday *&*Kilduff, Sacramento, CA, for Defendants.

*ORDER****

GARLAND E. BURRELL, JR., District Judge.

Defendants move to dismiss Plaintiffs federal malicious prosecution claim under Federal Rule of Civil Procedure 12(b) (6),1 and to strike Plaintiffs defamation claim under California’s Anti-SLAPP2 statute. *1048The gravamen of Plaintiffs action is that Defendants caused a meritless lawsuit to be filed against him and defamed him by publishing statements about that lawsuit (“the prior action”). Defendant City of Dunsmuir (“the City”) initiated the prior action following a dispute between the City and Plaintiff over a loan to Plaintiff of City funds and a lease to Plaintiff of City land.3 The City subsequently voluntarily dismissed the prior action.

*DISCUSSION*

*I. Motion to Dismiss Federal Malicious Prosecution*Claim4

Defendants argue that Plaintiff fails to state a federal malicious prosecution claim because (a) the prior action that Defendants filed against Plaintiff did not terminate in Plaintiffs favor, (b) Defendants had probable cause to institute the prior action against Plaintiff, (c) Defendants are protected by *Noerr-Pennington*immunity, and (d) Defendants John Fisher and Bill Sanford are protected by absolute legislative immunity. (Defs.’ Mot. to Dismiss and Mot. to Strike (“Mot.”) at 9:14-16.)

To state a federal malicious prosecution claim, Plaintiff must allege facts showing that the prior action terminated in Plaintiffs favor, was brought without probable cause, was initiated by or at the direction of Defendants, was initiated with malice, and was initiated “for the purpose of denying [Plaintiff] equal protection or another specific constitutional right.” *Awabdy v. City of Adelanto,*368 F.3d 1062, 1066 (9th Cir.2004) (quoting *Freeman v. City of Santa Ana,*68 F.3d 1180, 1189 (9th Cir.1995)); *Zamos v. Stroud,*32 Cal.4th 958, 966, 12 Cal.Rptr.3d 54, 87 P.3d 802 (2004) (discussing malicious prosecution elements).

*A. Termination in Plaintiffs Favor*

Defendants move to dismiss Plaintiffs federal malicious prosecution claim, arguing that since the City voluntarily dismissed the prior action against Plaintiff without prejudice and for economic reasons, the prior action did not terminate in Plaintiffs favor. (Mot. at 9:19-11:2.) However, a party’s voluntary dismissal is considered a favorable termination for the opposing party unless there is a reason for the dismissal not having to do with the merits of the action. *MacDonald v. Joslyn,*275 Cal.App.2d 282, 289, 79 Cal.Rptr. 707 (1969). “The determination of the reasons underlying the dismissal is a question of fact.” *Haight v. Handweiler,*199 Cal.App.3d 85, 89, 244 Cal.Rptr. 488 (1988).

Defendants request judicial notice be taken of the City Media Release that states that the prior action was dismissed for economic reasons. However, “documents are judicially noticeable only for the purpose of determining what statements are contained therein, not to prove the truth of the contents or any party’s assertion of what the contents mean.” *United States v. S. Cal. Edison Co.,*300 F.Supp.2d 964, 975 (E.D.Cal.2004) (internal citations omitted). Since Defendants have not demonstrated that their voluntary dismissal of the prior action was unrelated to the merits of the action, Defendants’ motion to dismiss Plaintiffs federal malicious prosecution claim on this ground is denied.

*1049*B.Probable Cause*

Defendants also move to dismiss Plaintiffs malicious prosecution claim, arguing that Plaintiff has not pleaded facts showing Defendants lacked probable cause to initiate the prior action against Plaintiff, since there was an actual controversy stated therein which created an objectively legally tenable claim for declaratory relief.5 (Defs.’ Reply at 5-11; Mot. at 12:15-14:9.)

However, the mere existence of a dispute does not necessarily make a suit for declaratory judgment “legally tenable” for malicious prosecution purposes. *See Camarena v. Sequoia Ins. Co.,*190 Cal. App.3d 1089, 1097, 235 CaLRptr. 820 (1987) (holding that declaratory relief actions may form the basis for a malicious prosecution claim). Since Defendants have not shown that Plaintiff failed to plead facts establishing that Defendants lacked probable cause to initiate the prior action, Defendants’ motion to dismiss Plaintiffs federal malicious prosecution claim on this ground is denied.

*C.Noerr-Pennington Immunity*

Defendants also move to dismiss Plaintiffs federal malicious prosecution claim, arguing that they are immune from liability for that claim under the *Noerr-Penington*doctrine. (Mot. at 11:4-8.)

Plaintiff counters that *Noerr-Pen-nington*immunity does not immunize Defendants because the prior action was a “sham litigation.” (PL’s Opp’n to Defs.’ Mot. (“Opp’n”) at 11:21-13:1.) *Noerr-Pen-nington*immunity does not immunize a defendant when the defendant filed a “sham litigation.” *Sosa v. DIRECTV, Inc.,*437 F.3d 923, 938 (9th Cir.2006). A lawsuit is considered a “sham litigation,” *inter alia,*“where the lawsuit is objectively baseless and the defendant’s motive in bringing it was unlawful.” *Id.*Plaintiff sufficiently alleges that the City’s prior action was objectively baseless and brought for an unlawful motive. *(See*PL’s Compl. ¶¶ 19, 21 (alleging that Defendants caused the prior action to be initiated “with malice,” in “retaliation against [P]laintiff for his criticism of the [C]ity’s governance”)). Accordingly, Defendants’ motion to dismiss Plaintiffs federal malicious prosecution claim on this ground is denied.

*D.Legislative Immunity*

Defendants Fisher and Sanford also move to dismiss Plaintiffs federal malicious prosecution claim, arguing that they are entitled to legislative immunity for their acts of voting, as members of the City of Dunsmuir city council, to cause the City to institute the prior action. (Mot. at 14:10-13.) However, Plaintiff alleges Defendants initiated the prior action “with malice” and in “retaliation against [Plaintiff for his criticism of the [C]ity’s governance.” (PL’s Compl. ¶¶ 19, 21.) Since legislative immunity “does not extend to even traditionally legislative actions of officials taken either in bad faith, because of corruption, or primarily in furtherance of personal instead of public interests,” *Haskell v. Wash. Twp.,*864 F.2d 1266, 1278 (6th Cir.1988), Fisher and Sanford’s motion to dismiss Plaintiffs federal malicious prosecution claim based on legislative immunity is denied.

*1050*II. Anti-SLAPP Motion*

Defendants move to strike Plaintiffs defamation claim under California’s Anti-SLAPP statute. *(See*Mot. at 15:11-23:4.)

*A. Plaintiff’s Attempt to Voluntarily Dismiss Defamation Claim*

Plaintiff states in his opposition to Defendants’ Anti-SLAPP motion to strike that he “will forthwith dismiss the defamation claim as alleged .... ” (Opp’n at 14:20-22.) However, to dismiss the defamation claim from his multi-claim Complaint, Plaintiff must amend the Complaint under Rule 15. *Hells Canyon Pres. Council v. U.S. Forest Serv.,*403 F.3d 683, 687 (9th Cir.2005) (“[Withdrawals of individual claims against a given defendant are governed by [Rule] 15, which addresses amendments to pleadings.”); *see Ethridge v. Harbor House Rest.,*861 F.2d 1389, 1392 (9th Cir.1988) (holding that a plaintiff “may not use Rule 41(a)(l)(i) to dismiss, unilaterally, a single claim from a multi-claim complaint”). Plaintiffs statements in his opposition brief cannot amend the Complaint under Rule 15. *See Car Carriers, Inc. v. Ford Motor Co.,*745 F.2d 1101, 1107 (7th Cir.1984) (“[I]t is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”). Accordingly, Plaintiff has not dismissed the defamation claim.6

*B. Anti-SLAPP Standard*

To succeed on their Anti-SLAPP motion to strike, Defendants must first demonstrate that Plaintiffs defamation claim arises from a protected activity; in other words, Defendants must show that the act of which Plaintiff complains was taken “in furtherance of the [Defendants’] right of petition or free speech under the United States or California Constitution in connection with a public issue” as defined in the Anti-SLAPP statute. Cal.Civ.Proc. Code § 425.16(b)(1); *Equilon Enters. v. Consumer Cause, Inc.,*29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685 (2002). Second, “[i]f the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” *Id.*at 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.

*C.Protected Activity*

Plaintiffs defamation claim is based on a statement in a City press release and other “defamatory statements to members of the public through publication of news articles regarding plaintiffs actions that allegedly led to [Defendants’] filing of the [prior action] and by asserting that he had engaged in wrongdoing regarding the [ ] lease.” (Pl.’s Compl. ¶ 28.)

Defendants argue that making the statements in the press release and the “news articles” was protected activity under the Anti-SLAPP statute. (Mot. at 16:26-19:8.) “[A] writing made in ... a public forum in connection with an issue of public interest” is a protected activity for Anti-SLAPP purposes. Cal.Civ.Proc.Code § 425.16(e). The City’s press release and the “news articles” constituted statements *1051in public fora. *See Damon v. Ocean Hills Journalism Club,*85 Cal.App.4th 468, 476, 102 Cal.Rptr.2d 205 (2000) (holding that a newsletter containing a “single viewpoint” was a public forum “in the sense that it was a vehicle for communicating a message about public matters to a large and interested community”); *Annette F. v. Sharon S.,*119 Cal.App.4th 1146, 1161, 15 Cal.Rptr.3d 100 (2004) (holding that a news publication is a public forum). Further, the statements were in connection with the litigation between the City and Plaintiff and the loan to Plaintiff of public funds. (PL’s Compl. ¶ 14.) These were issues of public interest. *See Copley Press, Inc. v. Sup. Ct.,*63 Cal.App.4th 367, 376, 74 Cal.Rptr.2d 69 (1998) (“[T]he public has a legitimate interest in knowing how public funds are spent and how claims (formal or informal) against public entities are settled.”). Accordingly, Defendants have met their burden of demonstrating that making the allegedly defamatory statements in the press release and in the news publications were protected activities under the Anti-SLAPP statute.

*D. Plaintiff’s Probability of Prevailing on the Merits*

In opposing the Anti-SLAPP motion, Plaintiff “cannot simply rely on [his] pleadings, even if verified, but must adduce competent, admissible evidence” to establish a probability of prevailing on the merits. *Roberts v. Los Angeles County Bar Ass’n,*105 Cal.App.4th 604, 613-614, 129 Cal.Rptr.2d 546 (2003).

Plaintiff has not demonstrated a probability of prevailing on the merits of his defamation claim based on the press release. Since Plaintiff failed to provide evidence demonstrating that he filed a tort claim with the City alleging that the press release was defamatory, Plaintiff has not shown that the defamation claim is not barred by the California Tort Claims Act. *See*Cal. Gov’t Code §§ 900*et*seq.; *see*Rabkin v. Dean, 856 F.Supp. 543, 553 (N.D.Cal.1994) (dismissing claim for defamation against city council member because plaintiff “fail[ed] to comply with the claims procedure of the California Tort Claims Act”).

Further, Plaintiff has not demonstrated a probability of prevailing on the merits of his defamation claim based on the other “defamatory statements to members of the public through publications of news articles” because Plaintiff has presented no admissible evidence of these other statements or who made them. (Pl.’s Compl. ¶ 28.) “Even under liberal federal pleading standards, general allegations of the defamatory statements which do not identify the substance of what was said are insufficient.” *Jacobson v. Schwarzenegger,*357 F.Supp.2d 1198, 1216 (C.D.Cal. 2004) (holding that a “defamation claim is insufficient” because the plaintiff failed to “identify and state the substance of the allegedly defamatory statement”). Accordingly, Defendants’ Anti-SLAPP motion to strike Plaintiffs defamation claim is granted.

*CONCLUSION*

For the foregoing reasons, Defendants’ motion to dismiss Plaintiffs federal malicious prosecution claim is denied and Defendants’ Anti-SLAPP motion to strike is granted.

IT IS SO ORDERED.

*

 This matter was determined to be suitable for decision without oral argument. L.R. 78-230(h).

1

. All subsequent references to “Rules” are to the Federal Rules of Civil Procedure.

2

. SLAPP stands for Strategic Lawsuit Against Public Participation.

3

. Defendants Keith Anderson ("Anderson”), Fisher and Sanford are California public officials. (PL’s Compl. ¶ 6.) It appears from the briefs that Fisher and Sanford are members of the city council for the City and Anderson is a City officer. *(See*Opp’n at 13:4; Mot. at 15:4.) Plaintiff alleges that Defendants "caus[edj” the City to institute the prior action. (PL's Compl. ¶ 1.)

4

. The Rule 12(b)(6) dismissal standards are well known and need not be repeated here.

5

. Although the City also alleged claims for fraud and breach of contract in the prior action, the issue is whether the City had probable cause for its declaratory relief claim since the fraud and breach of contract claims that appeared in the City’s first complaint in the prior action were dropped from the City’s amended complaint. *See Jenkins v. Pope,*217 Cal.App.3d 1292, 1300-01, 266 Cal.Rptr. 557 (1990) (“To allow a malicious prosecution suit to be based on a cause of action dropped from an amended complaint would discourage amendment of pleadings to delete theories which come to appear untenable.”).

6

. Plaintiff also indicates that he may wish to dismiss all claims against Anderson. Plaintiff states in his opposition brief that he “will dismiss the defamation claim against Keith Anderson, because it was not [Anderson] who made the statement as set forth in the complaint ....” (Opp’n at 4 n. 1.) Plaintiff further states, in opposing Defendants’ Anti-SLAPP motion, that "[b]ecause Keith Anderson was not the one, at least apparently, who made such statement, he will be dismissed as a defendant.” *(Id.*at 15:3-4.) Plaintiff also omits Anderson’s name from the caption in Plaintiff's opposition brief. These representations do not unambiguously demonstrate whether Plaintiff intended to dismiss all claims against Anderson or solely the defamation claim against Anderson. *(Id.*at 4 n. 1.) Therefore, Anderson remains a Defendant in this action.