Metropolitan News-Enterprise


Monday, December 2, 2002


Page 1


Judge Lacked Sufficient Evidence to Support Verdict For Malicious Prosecution, Court of Appeal Rules


By a MetNews Staff Writer


A verdict in a non-jury trial, assessing more than $34,000 in damages against a Mid-Wilshire attorney for malicious prosecution, has been thrown out by this district’s Court of Appeal, which found the verdict to be unsupported by the evidence.

Justice Kathryn Doi Todd, in an unpublished opinion Wednesday for Div. Two, said Los Angeles Superior Court Judge Robert Letteau, now retired, erred in basing his verdict against Steven L. Mazza on the attorney’s actions after the allegedly malicious suit was filed.

The malicious prosecution action was filed by Michael Condon, the manager of the Pink night club in Santa Monica in June 1997, on the same day that a negligence suit by Mazza’s client, Steven Klein, against Condon was dismissed.

Mazza brought suit on Klein’s behalf in 1995. The complaint alleged that Klein and another customer had a fight inside the club, that Klein had been injured, and that Condon, the bar’s manager, and the other defendants were liable on principles of general negligence and premises liability.

Only Condon was served. He did not answer and a default judgment was entered.

The judgment was later set aside. Discovery revealed that Condon had no ownership interest in the club, leading Mazza to move to set aside an order dismissing the unserved defendants. The motion was denied.

Mazza offered to file a dismissal as to Condon, but Condon moved for summary judgment, which was granted.

At trial on the ensuing malicious prosecution suit 27 months ago, Letteau “conducted extensive cross-examination of Mazza himself, challenged his testimony and argued with him throughout the brief proceedings,” Doi Todd explained.

Condon testified that he had an arrangement with his brother, who owned the club, under which his brother advanced his legal fees and costs for the defense of the underlying suit but he was obligated to pay reimbursement, totaling $12,460.

Letteau awarded him the full amount, saying it was  “very reasonable for what [Condon’s attorney] had to deal with to extricate Mr. Condon from a situation that he never should have been in in the first place.” 

The judge also awarded $4,500 in emotional distress damages. And, after ordering Mazza to prepare a personal financial statement from memory during a brief recess—a “most unorthodox” procedure, Doi Todd commented—Letteau awarded $17,500 in punitive damages.

But the verdict cannot stand, Doi Todd concluded, because Mazza reasonably relied on information supplied by an insurance adjuster, who erroneously told the attorney that Michael Condon was an owner of the club.

“The fact that Mazza conducted an inadequate investigation of the ownership of the Pink, relying on representations by insurance adjusters instead of his own independent investigation, does not establish a lack of probable cause to assert a premises liability theory against Condon,” the justice wrote.

Letteau, the appellate jurist continued, apparently based his verdict on a letter sent by Mazza to Condon following entry of default—in which the attorney warned of execution once judgment was entered—and on Mazza’s failure to dismiss as soon as he learned that Condon was not an owner of the club.

This was error, the justice said, because “the [malicious prosecution] inquiry begins and ends with the determination that the prior action was not brought without probable cause:  once the court determines the underlying suit was legally tenable the existence of malice is irrelevant.”

The improper continuation of a suit brought with probable cause, Doi Todd added, cannot, under longstanding California law, be the basis for a malicious prosecution suit.

Mazza represented himself on appeal. Condon was represented by Roderick J. Lindblom of West Los Angeles.

The case is Condon v. Law Office of Steven L. Mazza, B145458.


Copyright 2002, Metropolitan News Company