Metropolitan News-Enterprise


Monday, August 2, 2021


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Malicious Prosecution Action May Not Be Based on Bringing About Contempt Proceeding—C.A.


By a MetNews Staff Writer


A malicious prosecution action may not be founded on instituting contempt charges, Div. One of the Fourth District Court of Appeal held Friday, repudiating a contrary view expressed in 1986 by a division in this district.

Acting Presiding Justice Richard D. Huffman authored Friday’s opinion. It affirms a judgment by San Diego Superior Court Judge Richard E. L. Strauss in favor of the law firm of Metsch & Mason, its two partners, a client of the firm and one of its principals.

Suing them was Andy Kim, who, at the instance of the defendants, was ordered to show cause re contempt for refusing to appear at four judgment debtor examinations or otherwise cooperate in post-judgment proceedings in a breach of contract case. Kim was found not guilty of contempt on April 15, 2019, and brought his malicious prosecution action the following month.

Anti-SLAPP Motion

The action was dismissed after Strauss granted the defendants’ special motion to strike under the anti-SLAPP statute, Code of Civil Procedure §425.16. The judge found that, in light of the existence of probable cause for seeking a contempt adjudication, Kim had not shown a probability that he would prevail on the merits (the second prong of the statute).

Huffman agreed that Kim couldn’t win, but that’s because a malicious prosecution action will not lie based on contempt proceedings.

The late Justice L. Thaxton Hanson had a contrary view, expressed in his 1986 opinion for this district’s Div. One in Chauncey v. Niems, where he said:

“[A]n order to show cause re contempt…exposed the plaintiff Chauncey to criminal sanctions….Evaluated realistically, the order thus required Chauncey to retain counsel, appear in court, and respond to lengthy interrogatories. While the order may or may not have had an ‘independent existence,’ it nonetheless bore the indisputable earmarks of an adversarial proceeding. Most significantly, it incurred expenses, provoked psychological trauma, and required expenditure of time and effort to defend fully sufficient for us to find it the sort of proceeding upon which plaintiff could base a malicious prosecution action.”

Huffman noted that Hanson’s notion was rejected by the First District’s Div. Five in its 1989 opinion in Lossing v. Superior Court. There, then-Justice Donald King (now retired) wrote:

“Viewing a contempt proceeding in the context of the discovery statutes, we disagree with the dicta in Chauncey and conclude a malicious prosecution action cannot be grounded on the institution of a contempt proceeding in an ongoing action….”

He gave as one reason:

“Contempt is one of five sanctions which may be imposed for misuse of the discovery process….Although all five sanctions are ancillary to the ongoing action, only contempt bears the indicia of ‘independence’ which real parties contend render it a sufficiently separate proceeding. To permit a malicious prosecution action when a party has chosen contempt over one of the other sanctions would inject into the choice of sanctions an element unrelated to the appropriateness of the sanction.”

In light of the existence if discovery sanctions and the fact that malicious prosecution actions are disfavored, King said, “we conclude contempt proceedings to sanction discovery abuse are ancillary proceedings without sufficient independence to support a cause of action for malicious prosecution.”

Huffman’s Opinion

Agreeing with King, Huffman declared:

“[T]the OSC re contempt was issued in the context of ongoing, contentious litigation and regarded repeated efforts at engaging Kim in postjudgment debtor examinations, as well as discovery related to collection of the judgment; it was not raised as a separate proceeding with an independent existence. Without the underlying postjudgment discovery disputes, there would be no contempt motion. While the motion undoubtedly ‘incurred expenses...and required expenditure of time and effort to defend’…those expenses and efforts were the result of ongoing litigation, not new or different obligations resulting from a course of conduct independent from the existing litigation…Because the OSC regarding contempt was not a valid basis for a malicious prosecution claim here, the malicious prosecution complaint was properly struck.”

The case is Kim v. R Consulting & Sales, 2021 S.O.S. 4291.


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