Metropolitan News-Enterprise


Monday, August 25, 2014


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C.A. Upholds Dismissal of Malicious Prosecution Suit as SLAPP

Action Cannot Be Based on Domestic Violence Restraining Order—Justices




A request to adopt, amend, or extend a domestic violence restraining order cannot be the basis of a malicious prosecution suit, the Fourth District Court of Appeal has ruled.

Div. One Thursday affirmed a San Diego Superior Court judge’s ruling in favor of Chula Vista attorney Jan K. Maiden, whose representation of an Indian immigrant in Domestic Violence Prevention Act proceedings led to the filing of a complaint for malicious prosecution, abuse of process, and intentional infliction of emotional distress by the client’s estranged husband.

Judge Ronald L. Styn granted Maiden’s anti-SLAPP motion as to all three causes of action, and the Court of Appeal affirmed.

The wife, identified in the opinion by the initials N.A., retained Maiden in 2010, after having first sought a restraining order on her own. She claimed a pattern of abuse going back several years—the couple was married in 2002—culminating in a trip to India during which the husband stole the wife’s travel documents and demanded she meet with him to sign divorce documents he’d had prepared.

Her husband told her he had made it his goal to “ruin your life” and transferred their joint funds into his personal bank account, she said.

No Permanent Order

Maiden obtained a series of restraining orders, and a hearing on whether to issue a permanent order was set to take place in 2011. The wife abandoned the request, however, saying she no longer felt she needed the order as she had moved to Orange County and filed for divorce there.

The husband—identified as S.A.—then moved to sanction N.A., saying the request for a permanent restraining order was frivolous and based on false allegations. A judge agreed and awarded $3,500 in sanctions.

Less than a year later, S.A. sued N.A. and Maiden. The trial judge ruled for both defendants, but S.A. appealed only as to Maiden.

Justice Alex McDonald, writing for the Court of Appeal, said the malicious prosecution claim was barred by Bidna v. Rosen (1993) 19 Cal.App.4th 27. The court there held that there is a “bright-line” rule that family law motions cannot be the subject of malicious prosecution actions.

Bitter Proceedings

The Bidna court cited the “unique propensity for bitterness” that permeates family law proceedings, the availability of monetary sanctions to deter frivolous motions, the potential that fear of a malicious prosecution claim will deter a party from seeking effective relief, and the potential for increased malpractice insurance costs and decreased access to counsel.

While DVPA actions differ somewhat from other family law proceedings, in that they may be brought by persons not otherwise considered “family members,” the reasoning of Bidna still applies, McDonald said. The same four reasons cited in that case for disallowing malicious prosecution actions based on other family law motions apply to domestic violence restraining orders.

The justice went on to say that the putative abuse-of-process claim in S.A.’s complaint was actually a malicious prosecution claim, since it attacked the merits of the restraining order requests rather than the use of legal procedure, and thus was also barred by Bidna. The intentional infliction of emotional distress cause of action, he went on to say, was barred by the litigation privilege, so the anti-SLAPP motion was correctly granted as to all three claims.

The plaintiff represented himself on appeal. Maiden was represented by Heather L. Rosing and Daniel S. Agle of Klinedinst.

The case is S.A. v. Maiden, 14 S.O.S. 3717.


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