Thursday, November 3, 2016
Court of Appeal Holds:
Lawyer-Against-Lawyers Lawsuit Properly Dismissed
Says Plaintiff Demonstrated ‘Gall’ in Claiming He Was Damaged by Action Brought Against Him That He Could Have Prevented by Revealing the Controversy Had Become Moot
By a MetNews Staff Writer
The Court of Appeal has affirmed a judgment terminating a malicious prosecution action against the multi-state law firm of Dykema Gossett LLP and an attorney in its Los Angeles office, Jon D. Cantor, accusing the plaintiff, Orange County lawyer Kevin E. Monson of “gall” in contending he was a victim.
Monson’s action was dismissed by Orange Superior Court Judge Geoffrey T. Glass after granting the defendants’ anti-SLAPP motion.
Writing for the Fourth District’s Div. Three, Justice Raymond J. Ikola said in his unpublished opinion on Monday that the malicious prosecution action necessarily meets the first prong of the anti-SLAPP statute because filing a lawsuit is protected activity. He went on to declare that Monson had failed to meet his burden under the second prong: showing a probability of his action succeeding.
Monson’s lawsuit harks to an earlier successful action filed by Cantor on behalf of its client Angelus Block (which makes masonry products) against Joseph Parks. Parks and his wife filed for bankruptcy, but the Bankruptcy Court found that $63,870.87 of the judgment was nondischargeable based on the judgment debtor’s fraud.
Efforts at collecting on the judgment were thwarted when Parks entered into a post-nuptial agreement with his wife, Tiffany Parks, putting all of his assets in her name.
Monson said in a letter to Cantor:
“Joe has no assets and will never have any money. Tiffany is beyond your reach (because you have no judgment against her and because the post-nuptial agreement of March 2013 makes all of her future income her separate property). If I find any cash, rest assured that I will take it before anyone else will know it exists.”
Cantor then filed an action on behalf of Angelus Block in which Monson was named. The complaint alleged fraud, based on Monson’s representation that his client was bereft of funds, and conspiracy to make a fraudulent conveyance, based on Monson having concocted the post-nuptial agreement.
A judge dismissed the cause of action for fraud, holding the litigation privilege pertained. Four months later, Monson revealed that the post-nuptial agreement had been rescinded prior to the action for fraudulent conveyance being filed.
He wrote to Cantor:
“The post-nuptial agreement was rescinded after I received your correspondence that cited authorities indicating that the post-nuptial agreement may be unenforceable. You, of course, chose to file the lawsuit without ever seeing or requesting to see the post-nuptial agreement and without any inquiry as to the continued existence or effect of the agreement. I warned you multiple times that your threatened lawsuit was without basis in law or fact.”
Angeles Block dismissed its remaining cause of action, for fraudulent conveyance, and Cantor brought his suit for malicious prosecution.
Ikola said in Monday’s opinion that an action for malicious prosecution will lie only if there is a termination of the prior action in favor of the defendants as to all causes of action, that the action was brought without probable cause, and with malice.
A voluntary dismissal will sometimes satisfy the requirement of a favorable termination—but this was not one of those times, he wrote, given that the dismissal of the cause of action for fraudulent conveyance did not reflect on the merits of the action. He explained:
“The reason Angelus Block dismissed the prior lawsuit is plain. The lawsuit was based on the postnuptial agreement, and Monson waited several months into the litigation before revealing it had been rescinded. Does that reflect Monson’s innocence? Clearly not. To the contrary, the fact that Monson orchestrated a rescission in the first place indicates he knew he was likely guilty of conspiring to fraudulently convey the Parks’s assets. He then took steps to mitigate any damage to Angelus Block, but he failed to reveal those mitigating steps and, essentially, induced Angelus Block to file the fraudulent conveyance action. He then had the gall to claim he was damaged by the pendency of the lawsuit when he was sitting on the key to ending it the entire time. If anyone was damaged as a result of these events, it was Angelus Block, who maintained a lawsuit that had largely been mooted by actions Monson failed to disclose. Monson was not an innocent party, and thus Angelus Block’s dismissal of the conspiracy claim does not constitute a termination in Monson’s favor.”
Ikola went on to say that Cantor had probable cause to include a cause of action for fraud. He said it was not necessary to determine whether the litigation privilege did shield Monson from liability, but only “whether Angelus Block’s claim was arguable,” adding:
“[I]n our view, it was.”
The jurist noted that Monson made no showing of malice.
The case is Monson v. Dykema Gossett LLP, G051639.
Monson appeared in pro per. Representing Cantor and his firm were Joel E. Boxer, , and Douglas A. Fretty of Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow; as well as Bonita D. Moore, formerly of Bird Marella, now with Faegre, Baker, Daniels.
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