Monday, July 8, 2013
Court of Appeal Rules:
No Malicious Prosecution Action Based on OSC in Family Law Case
By a MetNews Staff Writer
The Court of Appeal for this district has held that an attorney in a family law case who, without justification, is hit with an order to show cause re contempt, instituted by the opposing party, has no cause of action against that party for malicious prosecution.
Div. Eight’s decision embraced the reasoning in a 1983 opinion by Div. Three of the Fourth District Court of Appeal in Bidna v. Rosen (1993) 19 Cal.App.4th 27. There, a husband in a dissolution of marriage case brought a malicious prosecution action based on a string of meritless orders to show cause.
In the case before Div. Eight, decided Wednesday in an unpublished opinion, it was the attorney for the husband who sued his client’s wife, claiming she “no basis and no probable cause for seeking a contempt order” against him.
The complaint, filed by Westwood attorney Joseph Daneshrad, alleged that he “was injured by way of attorney’s fees incurred” in responding to the OSC re contempt and by way of injury to his “reputation and social standing.”
The OSC was based on the failure of Daneshrad’s client to sign a release of information by a bank, in violation of a court order. The charging affidavit alleged that Daneshrad had caused his client to defy the order.
An OSC against the husband was dropped after he complied, and the one against Daneshrad was later also withdrawn.
The lawyer’s malicious prosecution action was scuttled when Los Angeles Superior Court Judge John L. Segal granted the anti-SLAPP motion filed by defendant Ferial Aryeh.
The opinion affirming Segal was written by Presiding Justice Trish Bigelow.
“…Bidna established this bright-line, absolute rule: no person who is involved in a family law proceeding as a party or as a lawyer, or who otherwise has some connection to the family law proceeding, may be sued for malicious prosecution based on orders or OSCs issued in the proceeding,” Bigelow wrote. “The unavoidable corollary is that no plaintiff may sue any person who is involved in a family law proceeding as a party or as a lawyer, or who otherwise has some connection to the family law proceeding, for malicious prosecution based on orders or OSCs issued in the proceeding.”
Act as Deterrent
The jurist went on to say:
“[W]e acknowledge Daneshrad’s alleged harms, and that denying a malicious prosecution claim will deny him the possibility of seeking damages apart from out-of-pocket losses, for example, damage for loss of reputation, emotional distress, and punitive damages. Daneshrad argues further that the availability of an independent malicious prosecution claim will deter bad acts in the family court….In short, Daneshrad essentially argues that an independent malicious prosecution claim should be viewed as a net positive.
“Daneshrad’s arguments do not persuade us that he must be allowed to pursue an independent lawsuit for malicious prosecution based on the OSC in the underlying family court proceeding, rather than seek (or have sought) remedies in the family court. Bidna largely considered the justifications offered by Daneshrad, but concluded a malicious prosecution claim should not be allowed when based on orders or OSCs in family law proceedings. We agree with Bidna’s reasoning, and agree that remedies in the family court, such as attorney fees and sanctions, would be sufficient to negate the need for independent lawsuits for malicious prosecution.”
Bigelow said that Segal’s award of $17,000 against Daneshrad as reasonable attorney’s fees and costs was within his discretion.
The case is Daneshrad v. Aryeh, B241604.
The Law Offices of Joseph Daneshrad was joined by Lyle River in representing Daneshrad. Farah Faramarzi and Michael Sabzevar were attorneys for the respondent.
Copyright 2013, Metropolitan News Company