Metropolitan News-Enterprise


Thursday, November 30, 2006


Page 3


Dismissal for Refusal to Be Deposed Held Termination on Merits


By TINA BAY, Staff Writer


An ex-client’s legal malpractice action was terminated on the merits when a judge dismissed it because of his refusal to be deposed, this district’s Court of Appeal has ruled.

In a decision published Tuesday, Div. Three agreed with Los Angeles Superior Court Judge Michael S. Mink that Burbank attorney Wesley Barrett “Barry” Ross

showed the underlying case in his malicious prosecution suit had been terminated on the merits in his favor.  Ross established a probability of prevailing in his claim against ex-client Thomas E. Kish, and Mink therefore properly denied Kish’s motion to strike Ross’s suit under the anti-SLAPP law. the justices held.

Kish had brought a breach of contract and legal malpractice against Ross, who represented him in the mediation of a real estate dispute, after Ross sued Kish for $4,000 in unpaid legal fees arising from that matter.  Kish’s lawsuit was dismissed in response to Ross’s request for a terminating sanction after Kish’s repeatedly failed to comply with an order for his deposition.

Following the dismissal, Ross filed a malicious prosecution action, which Kish moved to strike under the anti-SLAPP statute designed to protect free speech rights.  Mink denied the anti-SLAPP motion, finding that Ross established a probability of prevailing on his malicious prosecution claim by showing the legal malpractice suit was terminated in his favor, and that Kish sued him with malice and without probable cause. 

Presiding Justice Joan D. Klein, writing for the Court of Appeal, said Mink correctly treated Kish’s refusal to be deposed as a concession that his claims lacked merit.

She rejected Kish’s argument that his defiance did not reflect on the merits because he was acting on the advice of an attorney friend, Jeremiah Sheehan.  Sheehan, a New York lawyer, allegedly insisted that Kish not be deposed until Sheehan was admitted pro hac vice in California to represent him.

“Kish’s personal relationship with Sheehan demonstrates a bias that renders Kish’s claimed reliance on Sheehan’s opinion suspect,” Klein said.  “Moreover, attendance at a deposition is a matter exclusively within Kish’s control.” 

Kish was also “a relatively sophisticated litigant, given that he appeared in propria persona in the lawsuit against Ross and he was involved in other lawsuits,” Klein wrote.

“[T]he dismissal reflected adversely on the merits of the case and constituted a favorable termination for the purpose of initiating a claim for malicious prosecution,” the presiding justice added.

Because Ross showed a termination in his favor, along with malice and lack of probable cause, she said, Kish’s anti-SLAPP motion was properly denied.

With regard to probable cause, the presiding justice explained that Kish’s contract and malpractice claims were simply unsupported by the facts. 

Where the retainer agreement set hourly fees at $250 and estimated the total fee for handling Kish’s real estate matter was “$3,500 plus through mediation,” Kish’s claim that Ross made an oral contract not to charge him over $5,000 was not credible, she wrote.

Similarly, she said, the allegations Kish made in support of his malpractice claim held no water, Klein explained.  For example, his claim that Ross failed to retain experts in time for the mediation hearing was contradicted by the fact that Kish consented to Ross hiring three experts, and received a copy of each of their reports.

Kish could not show he would have obtained a more favorable outcome in his case but for Ross’s alleged errors, Klein wrote, because the mediation resulted in a settlement amount much lower than what Kish was being sued for. 

The buyers of his former property had brought a $325,000 to $435,000 claim against him for failing to disclose water damage prior to the $900,000 sale.  He settled the suit for $120,000, personally contributing only $25,000 toward that amount.

Klein noted the conduct of two lawyers who initially represented Kish in his suit undermined the claim that his case had merit:  the first, Ruth Phelps of Pasadena, represented Kish for only two days, while the second, Jeffrey J. Merrick, substituted into the case but failed to take any action on Kish’s behalf.

“[N]o reasonable attorney would have concluded Kish had a valid claim against Ross,” she said, adding:

“The record in this case is sufficient to permit a reasonable trier of fact to infer Kish sued Ross in retaliation for Ross’s attempt to recover unpaid fees and costs.”

Justices Walter Croskey and Richard D. Aldrich concurred in the opinion.

Attorneys on appeal were Frank W. Nemecek, Ophir J. Bitton and Mark Schaeffer of Nemecek & Cole for the defendant and Mark K. Koorenny of Koorenny & Teitelbaum, with Robert H. Pourvali, for the plaintiff.

The case is Ross v. Kish, 06 S.O.S 5777.


Copyright 2006, Metropolitan News Company