Tracey Hampton-Stein v. Aviation Finance Group, LLC , 472 F. App'x 455 ( 2012 )

FILED
NOT FOR PUBLICATION MAR 16 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRACY HAMPTON-STEIN, et al., No. 10-56573
Plaintiffs-Appellants, 2:10-cv-03897-RGK-PJW
v.
MEMORANDUM*
AVIATION FINANCE GROUP, LLC, et
al., et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted February 13, 2012
Pasadena, California
Before: FARRIS and W. FLETCHER, Circuit Judges, and KORMAN,
Senior District Judge.**
Plaintiff-Appellant Tracy Hampton-Stein (“Hampton”) appeals from a district
court order granting defendants-appellees’ anti-SLAPP motion and dismissing
Hampton’s suit for malicious prosecution. Hampton argues that the district judge
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, Senior United States District Judge for the
Eastern District of New York, sitting by designation.
should have denied the anti-SLAPP motion (1) because Hampton’s malicious
prosecution suit had the minimal merit necessary to survive, and (2) because the
defendants failed to comply with certain procedural rules.
We review de novo the district court order granting the defendants’ anti-SLAPP
motion. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003). Upon
such review, we conclude that the district court did not err in granting the defendants’
anti-SLAPP motion on its merits.
To survive an anti-SLAPP motion, Hampton’s complaint must be “legally
sufficient and supported by a prima facie showing of facts to sustain a favorable
judgment if the evidence submitted [by her] is credited.” Taus v. Loftus, 40 Cal. 4th
683, 713-14 (2007) (quotations and citations omitted). Hampton’s cause of action for
malicious prosecution requires that, among other things, the prior action about which
she complains—Aviation Finance Group’s fraudulent conveyance suit—had been
initiated with malice, which means having an improper motive for bringing the suit.
Drummond v. Desmarais, 176 Cal. App. 4th 439, 449-51 (2009).
The fraudulent conveyance suit arose out of a loan taken by Hampton from
Aviation Finance Group (“AFG”) for the purchase of a jet. After Hampton defaulted
on the loan, AFG won a judgment in Idaho (which was later domesticated in
California) for the remaining balance and was also awarded immediate possession of
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the jet. The fraudulent conveyance suit was based on what turned out to be the
erroneous premise that Hampton’s transfer of her home to a trust for the benefit of her
daughter was fraudulent under California law.
Hampton argues that the lack of probable cause for AFG’s fraudulent
conveyance suit is evidence of malice when AFG and its attorneys are sophisticated
and should, or likely did, know it was meritless. A lack of probable cause can support
an inference of malice, but it is insufficient evidence by itself. See Drummond, 176
Cal. App. 4th at 452. This is particularly true when the evidence suggests that AFG
voluntarily withdrew its complaint as soon as it became apparent that it was based on
a mistaken premise.
Nor is the other evidence upon which Hampton relies sufficient to show malice.
AFG President Jerry Dunn allegedly made menacing comments to Hampton.
Nevertheless, as the district court correctly held, these crude comments focused on
recovering money from Hampton and show “that Defendants’ motive in filing the
Conveyance Suit was to obtain repayment on the loan” owed by Hampton to AFG.
Moreover, while AFG’s alleged failure to properly maintain the private jet it
repossessed from Hampton may affect AFG’s recovery under the Idaho judgment, it
is not evidence of malice.
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Finally, the district court did not abuse its discretion in refusing to deny the
anti-SLAPP motion under Local Rule 7-3, nor did it abuse its discretion in ruling that
the motion was timely under Cal. Code Civ. Proc. § 425.16(f). We rarely question a
district judge’s discretion in applying the local rules, see United States v. Warren, 601
F.2d 471, 474 (9th Cir. 1979), and the language of § 425.16(f) (motion “may be filed
. . . , in the court’s discretion, at any later time upon terms it deems proper”) plainly
allows a district judge to determine when a motion is timely filed.
AFFIRMED.
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