Pasternack v. McCullough
Annotate this CasePlaintiff-appellant Lawrence Pasternack appealed an order that granted a special motion to strike his complaint for malicious prosecution against an attorney and his law firm, defendants-respondents Thomas B. McCullough, Jr. and Thomas B. McCullough, Jr., A Professional Corporation (the McCullough defendants). The parties agreed the complaint was based on protected speech and petitioning activity. They differed on whether the underlying action was terminated in favor of Pasternack, and thus whether Pasternack met his burden of stating and substantiating the favorable termination element of his malicious prosecution claim. The court concluded, and the Court of Appeal agreed, that Pasternack did not and could not prove the favorable termination element of his malicious prosecution claim. When Pasternack filed his malicious prosecution complaint, and when the special motion to strike was heard, he was still pursuing a cross-complaint in the underlying action against some of the same defendants he claimed maliciously filed the complaint in the underlying action. Thus, Pasternack's malicious prosecution complaint was premature, as a matter of law.
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