NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CHAVEZ, J.

Plaintiff and appellant Adam Michael Sacks (plaintiff) appeals from the order granting defendant and respondent Sandra Booker's (defendant) special motion to strike plaintiff's complaint pursuant to Code of Civil Procedure section 425.16.1 We affirm the order.

BACKGROUND

1. The Underlying Actions

Plaintiff is an attorney who filed the instant action against defendant for malicious prosecution, abuse of process, and intentional and negligent infliction of emotional distress. All of plaintiff's causes of action concern three underlying actions filed against him by defendant: (1) a civil action for a restraining order alleging that plaintiff engaged in stalking and harassment; (2) a criminal complaint charging plaintiff with annoying or threatening electronic contact, in violation of Penal Code section 653m, subdivision (a); and (3) a complaint filed with the State Bar of California alleging that plaintiff breached the attorney-client privilege.

The underlying civil action was dismissed after the superior court found no credible threats of stalking or violence as a basis for issuing a temporary restraining order or for waiving the requisite filing fees that were not paid by defendant. The underlying criminal action was also dismissed. The State Bar found insufficient grounds for any disciplinary action against plaintiff and closed its file on the matter.

2. Plaintiff's Complaint and Defendant's Anti-SLAPP Motion

Plaintiff served his complaint on defendant by personal service on May 24, 2010. Defendant filed her anti-SLAPP motion on August 31, 2010.2 Plaintiff opposed the motion on the grounds that it was untimely, that defendant's conduct was not protected activity under section 425.16, and that he had established a likelihood of prevailing on all of his causes of action.

At the September 23, 2010 hearing, the trial court allowed the anti-SLAPP motion to be heard and concluded that all of plaintiff's causes of action arose from protected activity because they were based on alleged conduct in furtherance of defendant's right of petition. The trial court then determined that plaintiff had not met his burden of establishing a reasonable probability of prevailing, because all three of the underlying actions had been dismissed without a determination on the merits and were covered by the litigation privilege accorded by Civil Code section 47. The trial court granted the motion to strike, and this appeal followed.

DISCUSSION

I. Section 425.16

Section 425.16 provides in relevant part: "(b)(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Determining whether the statute bars a given cause of action requires a two-step analysis. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) First, the court must decide whether the party moving to strike a cause of action has made a threshold showing that the cause of action "aris[es] from any act . . . in furtherance of the [moving party's] right of petition or free speech." (§ 425.16, subd. (b)(1); Navellier, supra, at p. 88.) "`A cause of action "arising from" [a] defendant's litigation activity may appropriately be the subject of a section 425.16 motion to strike.' [Citations.] `Any act' includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.] This includes qualifying acts committed by attorneys in representing clients in litigation. [Citations.]" (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)

If the court finds that a defendant has made the requisite threshold showing, the burden then shifts to the plaintiff to demonstrate a "probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1); Navellier, supra, 29 Cal.4th at p. 88.) In order to demonstrate a probability of prevailing, a party opposing a special motion to strike under section 425.16 "`"must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited."' [Citation.]" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741 (Jarrow), fn. omitted.)

A trial court's order granting a special motion to strike under section 425.16 is reviewed de novo. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)

II. Timeliness of Motion

Section 425.16, subdivision (f) provides that an anti-SLAPP motion "may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper." A trial court's ruling on whether to allow a late anti-SLAPP motion is reviewed for an abuse of discretion. (Olsen v. Harbison (2005) 134 Cal.App.4th 278, 286 (Olsen).)

"There are two ways to show an abuse of discretion by the trial court. One way is to show the ruling was whimsical, arbitrary, or capricious, i.e., that the trial court exceeded the bounds of reason. [Citation.] The other way is to show the trial court erred in acting on a mistaken view about the scope of its discretion. [Citation.]" (Olsen, supra, 134 Cal.App.4th at p. 285.) Plaintiff in this case has failed to demonstrate an abuse of discretion under either of these two ways.

III. Arising from Protected Activity

In deciding whether a defendant has satisfied the initial "arising from" requirement under section 425.16, a court considers "`the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' (§ 425.16, subd. (b).)" (Navellier, supra, 29 Cal.4th at p. 89.) Examination of the pleadings and declarations in this case shows that each of plaintiff's causes of action is premised upon acts in furtherance of defendant's right of petition, a protected activity under section 425.16.

Filing a lawsuit is an exercise of a party's constitutional right of petition. (Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1115 (Briggs); Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.) "`"[T]he constitutional right to petition . . . includes the basic act of filing litigation or otherwise seeking administrative action."' [Citations.]" (Briggs, supra, at p. 1115.) Thus, "a cause of action arising from a defendant's alleged improper filing of a lawsuit may appropriately be the subject of a section 425.16 motion to strike." (Chavez, supra, at p. 1087.)

Section 425.16 defines an "`act in furtherance of a person's right of petition or free speech'" to include "any written or oral statement or writing made before a . . . judicial proceeding, or any other official proceeding authorized by law." (§ 425.16, subd. (e)(1).) The plain language of the statute thus "dictates that every claim of malicious prosecution is a cause of action arising from protected activity because every such claim necessarily depends upon written and oral statements in a prior judicial proceeding." (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 215.)

The same analysis applies with respect to plaintiff's abuse of process claims, as those claims concern defendant's superior court actions (PrediWave Corp. v. Simpson Thacher & Bartlett LLP (2009) 179 Cal.App.4th 1204, 1221), and defendant's communications with the State Bar. (See Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 358 [initiation of a State Bar sponsored fee arbitration proceeding a protected activity under section 425.16].) Plaintiff's emotional distress claims similarly concern written and oral statements by defendant in the judicial or State Bar proceedings.

The California Supreme Court has held that "`communications . . . within the protection of the litigation privilege of Civil Code section 47, subdivision (b)3 [citation], . . . are equally entitled to the benefits of section 425.16.' [Citations.]" (Briggs, supra, 19 Cal.4th at p. 1115.) "Under the `usual formulation,' the litigation `privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]' [Citation.]" (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1058; Rubin v. Green (1993) 4 Cal.4th 1187, 1191.) Each of plaintiff's causes of action is based on oral or written communications made by defendant in the underlying actions. Those communications come within the protection of Civil Code section 47, subdivision (b) and thus constitute protected activity under Code of Civil Procedure section 425.16.

The trial court thus correctly determined that defendant met the threshold requirement of demonstrating that the causes of action asserted against her arise from activity protected under section 425.16.

IV. Reasonable Probability of Prevailing

Because the trial court correctly determined that plaintiff's claims against defendant arose from conduct that is protected under section 425.16, we must now determine whether plaintiff met his burden of "demonstrat[ing] a probability of prevailing on the claim[s]." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) To satisfy this burden, "the plaintiff must `state[] and substantiate[] a legally sufficient claim.' [Citation.] `Put another way, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited."' [Citation.]" (Jarrow, supra, 31 Cal.4th at p. 741, fn. omitted.) "Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation. [Citation.]" (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)

A. Malicious Prosecution

"In order to maintain an action for malicious prosecution, the plaintiff must first demonstrate that there was a favorable termination of the underlying litigation. [Citation.] This requirement is an essential element of the tort of malicious prosecution, and it is strictly enforced. [Citation.]" (Ferreira v. Gray, Cary, Ware & Freidenrich (2001) 87 Cal.App.4th 409, 412-413.)

"`The basis of the favorable termination element is that the resolution of the underlying case must have tended to indicate the malicious prosecution plaintiff's innocence. [Citations.] When prior proceedings are terminated by means other than a trial, the termination must reflect on the merits of the case and the malicious prosecution plaintiff's innocence of the misconduct alleged in the underlying lawsuit.' [Citation.] If the evidence of the circumstances of the termination is conflicted, "`the determination of the reasons underlying the dismissal is a question of fact."' [Citation.]" (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 217.)

The Supreme Court has drawn a distinction between a technical or procedural termination, as opposed to a substantive termination on the merits that reflects on the innocence or lack of responsibility. (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 342.) The high court explained that a technical or procedural termination is not a favorable outcome for purposes of a malicious prosecution claim. Examples include dismissals on statute of limitations grounds, pursuant to settlement, or on the ground of laches. (Ibid.)

The record supports the trial court's determination that plaintiff could not demonstrate a probability of success because he was unable to establish that he obtained a favorable termination on the merits of the underlying actions.

1. Restraining Order

The order dismissing defendant's ex parte application for a temporary restraining order was not a substantive termination of that case on the merits. The order states: "The Court does not find credible threats of stalking or violence to waive the filing fees or issue the temporary restraining order. [¶] The Petitioner is instructed to pay the filing fees or complete a fee waiver. [¶] The Petitioner does not return. [¶] The case is DISMISSED." From the order, one may infer that the dismissal could have resulted from defendant's failure to appear after being instructed to pay the requisite filing fees or to complete a fee waiver. There is thus support in the record for the trial court's determination that plaintiff had not established a favorable termination of the underlying civil action.

2. Criminal Complaint

The record contains no transcript of the criminal court proceedings against plaintiff, or any other court document that reflects plaintiff's innocence of the charges. The absence of such evidence supports the trial court's determination that plaintiff did not establish a favorable termination of the underlying criminal action.

3. State Bar Proceeding

There was no adjudication on the merits of the State Bar complaint against plaintiff. Plaintiff received a letter from the State Bar that states in relevant part: "We have reviewed and evaluated the above referenced matter. The determination has been made that there are insufficient grounds for disciplinary action. Therefore, we are closing our file at this time, without prejudice." The letter does not state that plaintiff was found innocent of any alleged misconduct. It is thus insufficient to establish a favorable termination.

B. Abuse of Process

"The tort of abuse of process constitutes the use of a legal process against another to accomplish a purpose for which it is not designed. [Citations.] Its elements are: (1) an ulterior motive; and (2) a willful act in the use of process not proper in the regular conduct of the proceedings. [Citations.] `[T]he essence of the tort "abuse of process" lies in the misuse of the power of the court; it is an act done in the name of the court and under its authority for the purpose of perpetrating an injustice. . . .' [Citations.]" (Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, 1019, disapproved on another ground by Rusheen v. Cohen, supra, 37 Cal.4th at pp. 1060-1065.)

To show a probability he would prevail on the abuse of process causes of action, plaintiff relies on his own declaration in which he states that defendant "acted willfully from an improper and evil motive amounting to malice" by filing the civil, criminal, and State Bar complaints against him. The facts alleged do not constitute an abuse of process.

The filing of a lawsuit, even for an improper purpose, cannot be an abuse of process. As our Supreme Court has explained:

(Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169-1170.) Plaintiff did not meet his burden of establishing a probability of prevailing on his abuse of process claims.

C. Intentional Infliction of Emotional Distress

"The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff's injuries were actually and proximately caused by the defendant's outrageous conduct. [Citation.]" (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.) In order to meet the first element, the alleged conduct "`". . . must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." [Citation.]'" (Ibid.) "[T]he tort does not extend to `mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities . . . .' [Citations.]" (Id. at p. 496, quoting Rest.2d Torts, § 46, com. d, p. 73.)

Plaintiff has alleged no conduct by defendant that meets this standard. His causes of action for intentional and negligent infliction of mental distress are premised on defendant's filing a civil, criminal, and State Bar complaint against him. None of these actions constitute extreme and outrageous conduct exceeding the bounds of reason. (See Cochran v. Cochran, supra, 65 Cal.App.4th at p. 494.)

D. Negligent Infliction of Emotional Distress

"Negligent infliction of emotional distress is not an independent tort; it is the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply. [Citation.]" (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 126.) "[T]here is no duty to avoid negligently causing emotional distress to another." (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) Thus, "unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant's breach of some other legal duty . . . ." (Id. at p. 985.) Plaintiff has not alleged any breach of duty owed to him by defendant, nor does such a duty exist between an attorney and an adverse party, as is the case here. (See, e.g., Schick v. Lerner (1987) 193 Cal.App.3d 1321, 1330; Omega Video Inc. v. Superior Court (1983) 146 Cal.App.3d 470, 480-481.) Plaintiff has therefore failed to establish a probability of prevailing on his cause of action for negligent infliction of emotional distress.

E. The Litigation Privilege

The litigation privilege also precludes any probability of plaintiff's prevailing on his abuse of process and emotional distress claims. "A plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant's liability on the claim. [Citations.]" (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 888 (Digerati).) As discussed, the litigation privilege precludes liability arising from any communication made by a litigant in a judicial proceeding, such as the underlying civil and criminal actions in this case, or in an official proceeding such as the underlying State Bar proceeding. (Action Apartment Assn. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241 (Action Apartment).) "The litigation privilege is interpreted broadly in order to further its principal purpose of affording litigants and witnesses the utmost freedom of access to the courts without fear of harassment in derivative tort actions."4 (Digerati, supra, at p. 889.) The privilege is also absolute and applies regardless of malice. (Ibid.)

The filing of the application for a temporary restraining order, the filing of the criminal complaint, and the filing of the complaint with the State Bar5 each involved statements made by a litigant in a judicial or other official proceeding, were logically related to those actions, and were made to achieve the objects of the litigation and were thus protected by the litigation privilege. Plaintiff therefore cannot establish a probability of prevailing on his abuse of process and emotional distress causes of action, and the trial court properly granted the special motion to strike those claims.

CONCLUSION

Each of plaintiff's causes of action sought to impose liability for conduct protected under section 425.16. Plaintiff did not show a probability of success on any of his claims. The trial court accordingly did not err by granting defendant's anti-SLAPP motion.

DISPOSITION

The order granting defendant's anti-SLAPP motion and dismissing plaintiff's complaint is affirmed. Defendant is awarded her costs on appeal.

We concur:

BOREN, P. J.

ASHMANN-GERST, J.