Wednesday, November 12, 2008
Court of Appeal Revives Malicious Prosecution Action Over Infection Claim
By STEVEN M. ELLIS, Staff Writer
The high rate of adults who unknowingly carry the sexually-transmitted human papilloma virus was fatal to claims by a woman and her attorney that they had probable cause to sue the last person with whom the woman had sex prior to testing positive, this district’s Court of Appeal ruled Monday.
Reviving the woman’s ex-boyfriend’s malicious prosecution action against the pair, Div. One held in a pair of unpublished opinions that the woman could not argue she relied on counsel’s advice where she had failed to fully disclose her sexual history to her attorney, and that the attorney could not show a probability of prevailing on the merits where he had failed to determine whether the man had been the source of his client’s infection within a reasonable medical probability.
Gina F., as she was identified, represented by Glendora attorney Stephen L. Belgum, brought suit against her former boyfriend, identified only as Eugene L., in 2003 after her ex-boyfriend told her—subsequent to having unprotected sex with her—that he had condyloma, or “genital warts,” a manifestation of HPV.
Eugene L. did not deny carrying the virus, but he claimed he had not known his condition was related to HPV, and in January 2004 he filed a motion for summary judgment on the ground that his ex-girlfriend could not establish the element of causation.
Noting expert medical testimony that infection occurs in up to 75 percent of sexually active adults, many without their knowledge, and that multiple sexual partners is a major factor in infection, he said that Gina F. had told him that she had previously engaged in sexual intercourse—sometimes unprotected—with a number of men, including Joe Francis, the creator of the “Girls Gone Wild” videos who allegedly claims to have had sex with hundreds of women.
After the trial court granted the motion, Eugene L. filed a malicious prosecution complaint in 2005 against both his ex-girlfriend and Belgum, in which he contended that Gina F. had filed the suit in order to punish him because she was mad, and to extract a monetary settlement because he was a wealthy businessman.
Gina F., who cross-complained against Belgum for malpractice and indemnity, moved for summary judgment on the ground that she had probable cause to initiate the action against Eugene L. because she relied on Belgum’s advice. She further contended that she did not need to show she had disclosed all facts of her sexual history to Belgum, but only those that were “pertinent,” because none of her other previous sexual partners carried the virus.
Belgum, meanwhile, moved to strike the complaint against him as a strategic lawsuit against public participation, arguing that he had probable cause to bring the action because his consultation with an expert who said it might be technologically possible to tie the particular strains of the virus Eugene L. and Gina F. carried showed the claim was viable. He also argued that he had not filed the complaint with malice towards Eugene L., whom he had never met.
Los Angeles Superior Court Judge Jacqueline A. Connor granted both motions, but Presiding Justice Robert M. Mallano wrote on appeal that triable issues remained as to whether Gina F. provided all relevant facts to Belgum.
“Gina’s sexual history…is relevant to the causation issue because the high prevalence of HPV in the population of sexually active adults and the potentially long latency period is relevant to the issue of whether it could be shown within a reasonable medical probability that it was Eugene and not another of her sexual partners who infected Gina with HPV,” he wrote.
Mallano similarly determined that Belgum lacked probable cause to bring the complaint because the attorney “did not possess and could not reasonably obtain facts on the element of causation sufficient to sustain a judgment.”
“[B]efore the underlying complaint was filed against Eugene, neither Gina nor the unnamed expert provided Belgum with evidence tending to establish that within a reasonable medical probability it was Eugene and not one of Gina’s prior sexual partners who had infected her with HPV.
“Gina’s statement to Belgum that none of her other sexual partners had a diagnosis of HPV does not establish that they were not infected with HPV; Belgum had no evidence that Gina’s other sexual partners had been tested for HPV. Without such information, Belgum had insufficient evidence establishing probable cause to file the complaint.”
Accepting Eugene L.’s evidence as true, Mallano further concluded, Belgum had acted with malice, writing that “the evidence permits the inference that Belgum’s filing of Gina’s action was motivated by the improper purpose of attempting to force a settlement that bore no relation to the merits of the claim.”
Justice Frances Rothschild and retired Los Angeles Superior Court Judge Stanley M. Weisberg, sitting by assignment, joined Mallano in the opinions.
The cases are Eugene L. v. Belgum, B199200, and Eugene L. v. Gina F., B202856.
Copyright 2008, Metropolitan News Company