Thursday, February 25, 2010
C.A.: Malicious Prosecution Action Against Santa Ana Firm Was SLAPP
By SHERRI M. OKAMOTO, Staff Writer
The Fourth District Court of Appeal yesterday upheld the dismissal of a malicious prosecution suit against a Santa Ana firm as a SLAPP.
Div. Three explained that the dismissal of the underlying case against Wilhelmina Daniels for discovery abuse satisfied the “favorable termination” element of her malicious prosecution claim, but that she failed to make a prima facie case of malice and could not demonstrate a likelihood of prevailing against Quinlivan Wexler LLP.
The seven-member general civil firm represented James T. Young, who sued Daniels for slander in 2004. After the complaint was filed, Young failed to participate in the discovery process, and did not appear for his deposition or respond to any of the 10 sets of written discovery propounded by Daniels.
Eventually the trial court in that action granted Daniel’s motion for terminating sanctions and dismissed the case. Daniels then sued Quinlivan Wexler and the two attorneys who represented Young in the slander action, asserting causes of action for malicious prosecution, abuse of process, negligence and intentional infliction of emotional distress.
The defendants filed a special motion to strike, asserting that the filing and continued litigation of the prior case was “based upon [the firm’s] reasonable tenable belief, based on information at [the firm’s] disposal, that the facts supported the allegations in the complaint.”
No ‘Ill Will’
They insisted that no one at the firm harbored any “feelings of ill will or malice” toward Daniels and that the underlying lawsuit had been “filed and litigated by [the] firm solely to advance Mr. Young’s right to petition and seek redress through the court.”
Orange Superior Court Judge Andrew P. Banks granted the anti-SLAPP motion, finding Daniels had failed to establish that the underlying action resulted in a “favorable termination,” a necessary element of her malicious prosecution claim. He also concluded Daniels had not demonstrated a likelihood of prevailing on her three remaining causes of action.
On appeal, Justice Raymond J. Ikola agreed that Daniels “completely failed” to meet her burden of showing a probability of prevailing on her abuse of process, negligence and intentional infliction of emotional distress claims since she did not set out the elements of the causes of action or attempt to show sufficient evidence had been provided to satisfy them.
Even if Daniels had attempted to meet her burden, Ikola said, the litigation privilege would foreclose her pursuit of the claims since she identified no allegedly-actionable conduct by the defendants apart from the communications they engaged in during the underlying lawsuit.
As for malicious prosecution claim, Ikola explained that Daniels had to plead and prove that the underlying lawsuit was pursued by defendants to a legal termination in her favor, the prior action was brought without probable cause, and that those proceedings had been initiated with malice, in order to survive the anti-SLAPP motion.
He said that Daniels established the first element by her proffer of evidence that Young did not provide any timely discovery responses and ignored repeated court orders to do so in the underlying action.
“Notwithstanding the fact that trial did not actually commence in this case, the relief granted by the court is comparable to granting a nonsuit motion,” Ikola reasoned.
He cautioned that not every case in which a terminating sanctions motion is granted would necessarily result in a “favorable termination,” but “where the record from the underlying action is devoid of any attempt during discovery to substantiate allegations in the complaint, and the court’s dismissal is justified by plaintiff’s lack of evidence to submit the case to a jury at trial, a prima facie showing of facts sufficient to satisfy the ‘favorable termination’ element of a malicious prosecution claim is established for purposes of an anti-SLAPP motion.”
The justice emphasized that “[t]he question presented by the favorable termination element of malicious prosecution…is whether the termination reflects the innocence of the malicious prosecution plaintiff or the lack of merit of the underlying action, not whether the termination reflects on the good faith of the particular malicious prosecution defendant.”
He added that “no consideration should be given to whether the malicious prosecution defendant was a plaintiff or the attorney for plaintiff in the underlying action” in determining whether a “favorable termination” in favor of the malicious prosecution plaintiff was reached.
Ikola also concluded that Daniels raised a factual dispute as to whether the defendants objectively had probable cause to institute and continue to prosecute the underlying litigation based on the absence of any witnesses, documents or other evidence in support of Young’s allegations.
“[A] fair inference from the record is that the Quinlivan Attorneys failed to adequately investigate the factual assertions made by Young before suing Wilhelmina,” the justice said, but he added that the possibility of negligence by the firm alone was not enough to establish malice.
Inference of Malice
Citing Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, which held that proof of malice can consist of evidence that a party knowingly brought an action without probable cause, Ikola reasoned that malice could also be inferred if a party continues to prosecute an action after becoming aware that probable cause is lacking.
Although the firm was unable to provide any support for Young’s allegations against Daniels in the underlying case, and apparently failed to undertake any independent factual investigation, Ikola noted that the record lacked any affirmative evidence that the defendants knew there was no probable cause for continuing to pursue the prior lawsuit on behalf of their client.
Absent such a showing, he said, Daniels could not establish malice, which was required for her to demonstrate a likelihood of prevailing on her malicious prosecution claim, and her complaint was properly dismissed.
Presiding Justice David G. Sills and Justice Richard D. Fybel joined Ikola in his decision.
The case is Daniels v. Robbins, 10 S.O.S. 947.
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