Wednesday, January 2, 2019
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C.A. Revives Malicious Prosecution Suit Against Eviction Lawyer
Reverses Granting of Anti-SLAPP Motion
By a MetNews Staff Writer
The Court of Appeal for this district has reinstated a malicious prosecution lawsuit against Los Angeles eviction attorney Dennis P. Block after a trial judge granted his anti-SLAPP motion, holding that the plaintiff in the case established a probability of prevailing against the lawyer.
The opinion by Div. Four Justice Audrey B. Collins, not certified for publication, was filed Friday.
Block was the attorney for the plaintiff’s landlord, James Clements. Clements brought an unlawful detainer action (“UD”) against the plaintiff, Claudia Shaefer, which he later dismissed voluntarily.
Shaefer sued Block and Clements for malicious prosecution, claiming that Block brought the unlawful detainer despite knowing it lacked probable cause and maliciously refused to dismiss it for several months.
Los Angeles Superior Court Judge Maureen Duffy-Lewis granted Block’s special motion to strike; Shaefer conceded that her lawsuit arose from protected activity and appealed only on the second anti-SLAPP prong.
Underlying Eviction Attempt
Clements’ UD included a copy of a 30-day notice to quit addressed to Shaefer, a month-to-month tenant. Shaefer demurred to the UD, noting that her tenancy of over a year and the multiple tenants living in Clements’ house entitled her to a 60-day notice under Civil Code §§1946.1 and 1946.5.
Her demurrer was overruled, but two days after her subsequent motion for summary judgment, Clements dismissed the action without prejudice.
Shaefer’s complaint alleged several causes of action against Clements; her only claim against Block was malicious prosecution.
Specifically, she alleged that Block—an eviction specialist with more than 40 years of experience in that field—knew that she was entitled to a 60-day notice to quit under the Civil Code, but that he “intended to maliciously pursue and unlawful detainer based upon” the defective 30-day notice.
Opposing the anti-SLAPP motion, Block declared that he held no personal animosity toward Shaefer, and that his actions in the case “were undertaken in good faith with the belief that Ms. Schaefer was a lodger who therefore could be terminated by service of a 30-day notice to quit.”
Probability of Success
To prevail on a malicious prosecution action, a plaintiff must prove that the defendant brought a lawsuit which ended favorably for the plaintiff, that the suit was brought without probable cause, and that it was initiated with malice.
Collins noted that “[t]here is no dispute that Schaefer has met the first element of her malicious prosecution claim, as the UD action was terminated in Schaefer’s favor when Clements dismissed it.”
Turning to probable cause, the jurist declared:
“We conclude that Schaefer has presented a prima facie case that it was objectively unreasonable for Block to institute the UD action and then continue to prosecute it for several months, based on the information he had at the time. The lease, dated 2013, was attached to the UD complaint when Block filed it in 2016, showing that Schaefer had lived at the residence for more than one year and triggering the 60-day notice requirement under Civil Code section 1946.1.…Block knew or should have known that notice was inadequate, and therefore the action lacked probable cause. However, he continued to prosecute the UD for several weeks after serving Clements’ discovery responses and documents, purportedly relying on Clements’ original statement that Schaefer was a single lodger in the home.”
Malicious Motivation Alleged
She continued:
“Here, the evidence was sufficient for Schaefer to make a prima facie showing that Block—a veteran attorney with extensive UD experience—instituted and continued to prosecute the UD action with knowledge that the action lacked probable cause. Despite this information, Block did not dismiss the action until faced with Schaefer’s motion for summary judgment.…Thus, taking Schaefer’s evidence as true, we find she demonstrated a probability of prevailing on her claim that Block acted with malice in the UD action….
“Block’s contention that he was entitled to rely on the information supplied by Clements does not defeat this showing. While a lawyer ‘is entitled to rely on information provided by the client,’ once the lawyer discovers the client’s statements are false, the lawyer cannot rely on such statements in prosecuting an action.…Here, Block was not entitled to continue to prosecute the UD action against Schaefer while ignoring the lease attached to his client’s complaint and the information in the discovery responses he served. These circumstances are sufficient to establish a prima facie case of malice and therefore meet Schaefer’s burden on the motion to strike.”
Arguments Found ‘Frivolous’
Collins assailed contentions put forth at oral argument by Block’s lawyer, Richard B. Jacobs of Valley Village. She said, in a footnote:
“During oral argument on appeal, Block’s counsel suggested that Block believed at the time he filed the UD that Schaefer had never paid rent and was therefore only entitled to a 30-day notice as a ‘lodger.’ He further argued that Block dismissed the UD after he received Schaefer’s discovery responses showing proof of payment of rent. We find this contention frivolous for several reasons. First, Block failed to raise it in his briefs. Second, he has provided no authority supporting the proposition that a ‘lodger’ is defined as a tenant who does not pay rent….Finally, the record belies this claim. The UD complaint alleged that pursuant to the written lease agreement, Schaeffer agreed to pay rent of $750 per month. Further, the payment schedule attached to that complaint showed that Schaefer made her first payment under this agreement in 2013. And neither the discovery responses in the record nor Block’s explanation for the dismissal in his declaration support counsel’s suggestion that the UD was dismissed because Block received proof of rent payment in discovery.”
The case is Shaefer v. Block, B280725.
Shaefer represented herself on appeal.
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