Xcentric Ventures v. Borodkin

A finding of malicious prosecution includes proving an element, that the underlying claims were brought or continued without either factual or legal probable cause.

Xcentric Ventures, LLC (“Xcentric”) brought suit against Lisa Borodkin, Raymond Mobrez, and Iliana Llaneras for malicious prosecution. The underlying claim against Xcentric was an attempted racketeering extortion claim for allegedly creating false and defamatory statements against other businesses, and subsequently charging those businesses monthly fees to remove or stop the posted statements. Xcentric claimed in its malicious prosecution case that Borodkin, Mobrez, and Llaneras “lied about phone conversations to support their underlying extortion claim,” and thus lacked factual probable cause. The district court granted summary judgment to Mobrez and Llaneras, and a Federal Rule of Civil Procedure 12(b)(6) dismissal to Borodkin, which Xcentric appealed. On appeal, the Ninth Circuit resolved the issue of whether Xcentric could prove an element of the malicious prosecution claim, that the claim was brought or continued without factual or legal probable cause. An individual lacks factual probable cause when the individual relies on facts that the individual had no reasonable cause to believe were true. Moreover, legal probable cause exists “‘if any reasonable attorney would have thought the claim was tenable’” based on the facts known to that attorney. The panel found that the underlying claims presented in the attempted racketeering extortion case were supported by other undisputed evidence, so the dispute of whether Mobrez and Llaneras lied did not negate probable cause. The panel also found that Borodkin pursued tenable claims because Borodkin relied on written statements rather than statements made by Borodkin’s clients through phone conversations, which Xcentric claimed the clients lied about. The panel therefore found that Xcentric could not prove that Borodkin continued to pursue the claim without factual or legal probable cause. AFFIRMED.