Metropolitan News-Enterprise


Wednesday, May 4, 2011


Page 1


Malicious Prosecution Lawsuit Against Attorney Held SLAPP by Third District Court of Appeal


By SHERRI M. OKAMOTO, Staff Writer


The Third District Court of Appeal yesterday threw out a malicious prosecution action, based on a defamation suit brought against a Northern California attorney, as a strategic lawsuit against public participation.

Since probable cause existed to file and prosecute the underlying defamation claim against Granite Bay lawyer Joanna R. Mendoza, the appellate panel said, she was unable to succeed on the merits of her malicious prosecution action and the special motion to strike her complaint pursuant to Code of Civil Procedure Sec. 425.16 should have been granted.

Mendoza’s case arose out of earlier litigation in which she served as counsel for Dale Wallis in a wrongful termination action against PHL Associates Inc., a veterinary medicine company partially owned by Jeffrey Wichmann.

While the jury was deliberating in the Wallis action, the trial judge called a conference of all parties and gave each of them a copy of a police report which stated that the property manager of the building housing Mendoza’s law firm, Livingston & Mattesich, had reported Wichmann was “very unstable, has called in threats and has participated in the vandalism of [the] law firm’s vehicles.”

Based on the statements in this report, Wichmann sued Mendoza, her firm, and name partner Carol Livingston. Judgment was ultimately entered against Wichmann on his defamation claim.

Nearly two years later, Mendoza filed suit against Wichmann and his attorney in the underlying action for malicious prosecution. Wichmann moved to strike the complaint as a strategic lawsuit against public participation, but Sacramento Superior Court Judge Loren E. McMaster declined to do so.

McMaster found Wichmann lacked probable cause to sue Mendoza for defamation because it was “apparent from his testimony that Wichmann inferred that Mendoza was the source of the defamatory statements in the incident report, because she called him ‘unstable’ to his face, and the incident report used the same word,” McMaster said.

Wrting for the appelate court, however, Justice George Nicholson disagreed, concluding that a reasonable attorney would have thought the defamation action was tenable in light of the facts known to Wichmann.

The justice noted that Mendoza introduced no facts to challenge those propounded by Wichmann, but rather, relied upon Wichmann’s admission that he did not know if Mendoza had made the allegedly defamatory statements contained in the police report.

“Obviously, in order to win his defamation claim against Mendoza, Wichmann would have to establish that Mendoza made the defamatory statements or took a ‘responsible part’ in the publication of the statements,” Nicholson said, but “that is not the standard for determining probable cause.”

He explained the “issue here is whether there was sufficient undisputed circumstantial evidence at the time Wichmann filed and prosecuted his complaint on which any reasonable attorney could suspect that Mendoza made the defamatory remarks or took a responsible part in their publication.”

In light of the uncontroverted evidence that Mendoza “took a responsible part in telling [the property manager] that Wichmann was unstable and had made threats, and had all but explicitly accus[ed] Wichmann of the vandalism,” Nicholson posited that “it was reasonable for Wichmann to suspect strongly that Mendoza had communicated his name and the information to Livingston and [the property manager] that formed the basis of the allegations in the police report.” 

Nicholson emphasized that “a malicious prosecution plaintiff opposing an anti-SLAPP motion where the facts surrounding probable cause in the underlying action are not in dispute must establish the defendant’s lack of probable cause in the underlying action as a matter of law in order to survive an anti-SLAPP motion.” If, as here, the undisputed facts establish the existence of probable cause as a matter of law, “there is no showing the plaintiff can make to demonstrate a likelihood of succeeding on the merits of her malicious prosecution complaint,” he said.

Justices Vance W. Raye and Cole Blease joined Nicholson in his decision.

The case is Mendoza v. Wichmann, 11 S.O.S. 2264.


 Copyright 2011, Metropolitan News Company