Metropolitan News-Enterprise


Monday, May 21, 2012


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Court of Appeal Throws Out Abuse-of-Process Suit Against Local Attorney Morse Mehrban


By a MetNews Staff Writer


A suit charging a well-known local attorney with malicious prosecution and abuse of process has been thrown out by the Court of Appeal under the anti-SLAPP law.

The action against Morse Mehrban arose from protected activity—bringing a lawsuit—so the burden was on the plaintiff to show a likelihood of prevailing, Justice Richard Mosk wrote for Div. Five. Plaintiff JSJ Limited Partnership failed to meet that burden, the jurist concluded, because the abuse-of-process claim is barred by the litigation privilege and the malicious prosecution claim could not succeed  because JSJ’s success in the underlying suit was not on the merits.

JSJ sued Mehrban after the attorney—a prolific litigator of disability access cases, “bounty hunter” actions under the toxic torts initiative Proposition 65, and private attorney general suits under the Unfair Competition Law, before they were largely eliminated by the passage of Proposition 64 in 2004—sued the company twice for disability access violations.

Both suits were brought on behalf of the same client, a disabled man named Alfredo Garcia. In 2008, Garcia claimed that when he patronized—on multiple occasions—a restaurant located on property owned by JSJ, he was unable to use the paper towel and toilet seat cover dispensers in the restroom because they were too high off the ground. He also claimed he could not use the toilet because it lacked the proper support bars.

The case was tried without a jury, and the judge ruled for the defendant.

In 2009, Mehrban again sued on Garcia’s behalf, claiming that JSJ failed to provide a suitable van-accessible handicap parking spot in the restaurant’s lot. The defense demurred, claiming that res judicata barred the second action.

Mehrban argued that the issues regarding the parking lot were distinct from those involving the restroom, so res judicata did not apply. JSJ contended that inconsistencies showed that the second pleading was a sham, reasoning that if the restaurant lacked adequate parking, the plaintiff would not have been able to enter the premises and attempt to use the restroom.

The judge ruled that in the absence of a more specific pleading with regard to the dates, it appeared that Garcia actually visited the restaurant at a time he alleged he was deterred from doing so by the lack of adequate parking. The judge sustained the demurrer with leave to amend.

Garcia did not amend, and dismissed the action voluntarily.

JSJ then sued Mehrban and Garcia—who was not a party to the appeal ruled on Thursday—claiming that they had knowingly fabricated the complaint in the second suit in retaliation for having lost the first. Mehrban filed an anti-SLAPP motion, claiming the suit arose from his exercise of his constitutional right to bring a lawsuit.

JSJ responded that it did not seek to prevent the filing of disability access suits against it, but that the second suit was a sham. Judge Abraham Khan denied the motion without explanation, which Mosk said was error.

The justice explained that Mehrban’s subjective reason for filing suit was irrelevant to the determination of the motion. Any “written or oral statement or writing made before a…judicial proceeding” is protected by Code of Civil Procedure Sec. 425.16, he said.

He further agreed with Mehrban that JSJ was not likely to prevail on the merits.

The abuse-of-process claim was destined to fail, Mosk explained, because of the litigation privilege. While the privilege does not preclude an action for malicious prosecution, he noted, abuse of process comes under the rule that the “mere filing or maintenance of a lawsuit,” even a frivolous one, is not actionable in tort.

As for the malicious prosecution claim, the justice went on to say, the plaintiff could not prevail because the voluntary dismissal avoided a ruling on the merits, which is an essential element of the cause of action.

The result would be different, Mosk explained, if the demurrer had been sustained on the basis of a substantive issue. But res judicata is a matter of procedure, not substance, he said.

Morse Mehrban was represented on appeal by Julie Mehrban. JSJ’s attorney was Steve Hernandez.

The case is JSJ Limited Partnership v. Mehrban, 12 S.O.S. 2341.


Copyright 2012, Metropolitan News Company