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Thursday, August 20, 2020


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Voluntary Settlement Was Not Enough to Support Malicious Prosecution Claim—Appeals Court


By a MetNews Staff Writer


A voluntary dismissal of an action with prejudice did not support a subsequent lawsuit for malicious prosecution where the dismissal was a condition of the settlement of a separate action, the Court of Appeal for this district has held.

The opinion by Presiding Justice Dennis M. Perluss of Div. Seven affirms a July 2, 2018 judgment of dismissal by Los Angeles Superior Court Judge Bobbi Tillmon, which she signed immediately after granting an anti-SLAPP motion filed by two Beverly Hills attorneys, Jonathan Pakravan and Sassan Masserat. The two were sued for malicious prosecution; the plaintiffs in that action had been defendants in employment litigation the lawyers had pursued against them on behalf of a client.

The malicious prosecution action, Tillmon found, lacked minimal merit, with the second prong of the anti-SLAPP statute, Code of Civil Procedure §425.16, thus being unsatisfied.

‘Reflect on Merits’

Agreeing, Perluss said that for an outcome in prior action to be considered favorable to a defendant in that action—giving rise, if other requirements are met, to cause of action for malicious prosecution—the outcome establish the innocence of the defendant in the earlier proceeding of the alleged wrongs.

Evidence of a voluntary settlement of the underlying action with the plaintiff dismissing it with prejudice is sometimes enough—but not necessarily so—to show favorability to the defendant in the prior action, Perluss wrote. Justices John L. Segal and Gail Ruderman Feuer joined in Perluss’ unpublished opinion, filed Monday.

Under the circumstances of the present case, Perluss said, termination of the prior action was not favorable to the defendants in that action.

False Claims Allegations

Plaintiffs in the malicious prosecution action were Windy Pizza Plus and its owners, partners Antonio Pellini and Filippo Alberti Pezzoli. They alleged that Pellini’s ex-wife, Eugenia Catellani, who had worked for the company as vice president until she separated from Pellini, initiated an employment lawsuit against them based on false claims.

Pakravan represented Catellani in her divorce proceeding, which was filed in 2013. As the martial dissolution action was still pending a year later, Masserat filed an employment action on behalf of Catellani, asserting violations of California Labor Code, breach of oral and implied-in-fact employment contracts, assault, battery, retaliation, and constructive discharge.

Both attorneys eventually represented Catallani in both the divorce and employment actions.

Divorce Settlement

Pellini and Pezzoli filed motions for summary judgment and summary adjudication in the employment action in 2015. Before Catellani replied to the motions, she settled issues in her divorce action, a condition being that she dismiss her employment action with prejudice.

Masserat and Pakravan then filed a request to dismiss with prejudice the employment claims against Pellini, Pezzoli, and Windy Pizza.

Pellini and Pezzoli maintained that the employment action was without merit, alleging Catellani falsely claimed she was forced to resign, that she was not an employee of Pezzoli’s and Pellini’s, and that she was exempt from wage-and-hour laws as Windy Pizza’s vice president.

The complaint also alleged that Masserat and Pakravan initiated and pursued the employment action knowing it was based on false claims for their own financial gain and to use it as leverage in the marital dissolution action.

No Minimal Merit

Tillmon granted the attorneys’ special motions to strike the complaint, which argued that Pellini and Pezzoli had not established probability of prevailing on the merit, as required under the second prong of the anti-SLAPP statute. Pellini and Pezzoli conceded that the claims arose from protected activity—petitioning—satisfying the first prong.

Rejecting their contention that Catallani’s voluntary dismissal with prejudice of the employment action should be construed as favorable to them, Perluss said that a claim settled on a technical or procedural basis does not support a finding favorable to plaintiffs alleging malicious prosecution.

He quoted the Sixth District’s 2015 opinion in Nunez v. Pennisi as saying:

“An example of a technical or procedural termination that is not favorable for purposes of a malicious prosecution claim is a dismissal pursuant to a settlement.”

Voluntary Dismissal Presumption

“To be sure, cases have stated or otherwise suggested a voluntary dismissal is presumed to be a favorable termination on the merits,” Perluss wrote, but added:

“Any such presumption, however, is rebuttable.”

He pointed out:

“Even if a voluntary dismissal were presumed to constitute a favorable termination, Pakravan and Masserat rebutted the presumption and defeated the malicious prosecution claim as a matter of law by presenting evidence Catellani had voluntarily dismissed her employment action with prejudice pursuant to a settlement….As observed by the trial court, the Windy Pizza parties’ complaint alleged, ‘As part of her [settlement] agreement, Catellani...agreed to dismiss with prejudice the entire Employment Action with prejudice against not only Pellini but also, Windy Pizza and Pezzoli who, obviously, were not parties to the Divorce Action.’ This allegation was supported by Pellini’s declaration filed in opposition to the motions to strike. Moreover, the settlement agreement provided Catellani would dismiss her employment action ‘[a]s a material and integral part’ of the settlement.”

Attorney Fees Awarded

Tillmon on June 11, 2019, awarded Masserat $60,950 in attorney fees as the prevailing party on the anti-SLAPP motion.

The case is Windy Pizza Plus, LLC v. Masserat, B292047.

Counsel for defendants were Jonathan B. Cole and Mark Schaeffer of the Encino firm of Nemeck & Cole, and Lawrence C. Ecoff and Alberto J. Campain of Ecoff Campain & Tilles in Beverly Hills. Counsel for the plaintiffs was Beverly Hills lawyer Thomas S. Byrnes.


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