NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 19 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MANI SUBRAMANIAN, an individual No. 09-15598
and as a derivative action plaintiff,
D.C. No. 3:06-cv-03050-VRW
Plaintiff - Appellant,
v. MEMORANDUM*
QAD, INC., a Delaware corporation with
principal place of business in California; et
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding
Submitted July 19, 2012**
San Francisco, California
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Appellant appeals pro se the district court’s judgment and orders striking his
cause of action for malicious prosecution, dismissing his cause of action for unfair
competition, dismissing the remainder of his action for failure to prosecute, and
related orders. We affirm.
1. Malicious Prosecution Cause of Action
The district court granted appellees’ motion to strike appellant’s cause of
action for malicious prosecution under California Code of Civil Procedure §
425.16, the California anti-SLAPP law. See Chitsazzadeh v. Kramer & Kaslow,
130 Cal. Rptr. 3d 910, 912 n.1 (Cal. Ct. App. 2011). We review the grant of a
motion to strike under the anti-SLAPP law de novo. See Vess v. Ciba-Geigy Corp.
USA, 317 F.3d 1097, 1102 & 1109 (9th Cir. 2003).
A motion to strike under the anti-SLAPP law is appropriate if the cause of
action arises from the defendants’ protected activity and the plaintiff cannot
demonstrate a probability of prevailing on the challenged cause of action. Vess,
317 F.3d at 1110; Chitsazzadeh, 130 Cal. Rptr. 3d at 913-14; Equilon Enterprises
v. Consumer Cause, Inc., 52 P.3d 685, 694 (Cal. 2002).
A malicious prosecution claim arises from the initiation and prosecution of a
lawsuit and falls within the scope of activity protected under the anti-SLAPP
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statute. Jarrow Formulas, Inc. v. LaMarche, 74 P.3d 737, 741-46 (Cal. 2003);
Paiva v. Nichols, 85 Cal. Rptr. 3d 838, 847-48 (Cal. Ct. App. 2008).
Appellant cannot demonstrate a probability that his malicious prosecution
claim would succeed. Under California law, a malicious prosecution claim
requires the plaintiff to show that the underlying action reached a legal termination
in his favor. Sheldon Appel Co. v. Albert & Oliker, 765 P.2d 498, 501 (Cal. 1989);
Bertero v. National General Corp., 529 P.2d 608, 613 (Cal. 1974). Here, the
underlying state litigation was terminated based on a negotiated settlement. “A
settlement does not constitute favorable termination of an action for the purposes
of a malicious prosecution claim.” Cantu v. Resolution Trust Corp., 6 Cal.Rptr.2d
151, 165 (Cal. Ct. App. 1992). Accordingly, the district court properly granted
appellees’ motion to strike the malicious prosecution cause of action.
Chitsazzadeh, 130 Cal. Rptr.3d at 913-14.
2. Unfair Competition Cause of Action
The district court dismissed appellant’s unfair competition cause of action
under California res judicata law. Constantini v. Trans World Airlines, 681 F.2d
1199, 1201 (9th Cir. 1982). We review de novo dismissals for failure to state a
claim based on res judicata. Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir.
2002). Res judicata precludes lawsuits on “any claims that were raised or could
3 09-15598
have been raised in a prior action.” Id., quoting Owens v. Kaiser Found. Health
Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). In California, res judicata applies if
the decision in the prior proceeding was final and on the merits and the present
proceeding is on the same cause of action as the prior proceeding. Citizens For
Open Gov’t v. City of Lodi, 140 Cal.Rptr.3d 459, 481-82 (2012). Appellant
brought claims for unfair competition in the underlying state litigation and in his
prior federal action against appellees. In the previous federal case, the district
court dismissed the unfair competition claim with prejudice, after which we
affirmed. St. Paul Fire & Marine Ins. Co. v. Vedatech Int’l, Inc., 245 Fed. Appx.
588, 591 (9th Cir. 2007). The unfair competition allegations appellant now asserts
were litigated or could have been litigated in the prior federal action. The claim is
therefore barred by res judicata. Stewart, 297 F.3d at 956; Citizens For Open
Gov’t, 140 Cal.Rptr. 3d at 481-82.
3. Failure to Prosecute
The district court dismissed appellant’s action for failure to prosecute under
Fed. R. Civ. P. 41(b), after appellant failed to appear at a case management
conference, failed to appear at two scheduled depositions, and failed to comply
with the district court’s orders to provide discovery and pay attorneys’ fees. We
review an order dismissing an action under Fed. R. Civ. P. 41(b) for abuse of
4 09-15598
discretion. In Re PPA Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir.
2006). The district court considered proper factors and determined that further
delay was not justified and would prejudice the defendants and that less drastic
measures, including monetary sanctions and contempt orders, had failed to curb
appellant’s dilatory conduct. See Id.; Carey v. King, 856 F.2d 1439, 1440 (9th Cir.
1988) (describing proper factors to consider). Accordingly, the district court did
not abuse its discretion. PPA Products, 460 F.3d at 1226; Carey, 856 F.2d at 1440.
4. Remaining Contentions
We have reviewed appellant’s remaining contentions, including that the
district court erred by imposing sanctions, awarding appellees attorneys’ fees,
denying leave to make further amendments to the complaint, denying a
continuance for further discovery, and denying appellant’s recusal challenge.
These contentions have no merit.
We have also considered appellant’s request to join Vedatech K.K. as a
party. We deny that request.
AFFIRMED.
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