Metropolitan News-Enterprise


Friday, April 28, 2023


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Malicious Prosecution Action Doesn’t Lie Based on Warrantless Arrest, Alone—C.A.

Bendix Says in Partial Dissent That Plaintiffs Should Have Been Allowed to Reinstate Causes of Action They Had Earlier Abandoned


By a MetNews Staff Writer


The Court of Appeal for this district yesterday declined to repudiate an opinion declaring that a false report to the police causing a person to be subjected to a warrantless arrest does not give rise to an action for malicious prosecution where no prosecution ensues, affirming a judgment of dismissal and rejecting the contention that the plaintiffs should have been allowed to reassert causes of action that had been voluntarily dropped.

Justice Helen I. Bendix of Div. One asserted in a partial dissent that the rule of liberality in permitting amendments should have dictated that leave be granted to bring back the omitted claims. Those claims were for negligence, defamation, libel per se, and intentional infliction of emotional distress.

Los Angeles Superior Court Judge Huey P. Cotton granted judgment on the pleadings to defendant Ahang Zarin Kelk, sued by Yousseff Mikhail and Reza Bidari based her allegedly baseless report to police that they had physically attacked her. Mikhail was arrested and had to post bail to gain his release.

Cotton acted in reliance on the 2017 opinion from Div. Two of the Fourth District Court of Appeal in Van Audenhove v. Perry.

Ramirez’s Opinion

In the opinion in that case, Presiding Justice Manuel A. Ramirez said:

“We will hold that a cause of action for malicious prosecution cannot be premised on an arrest that does not result in formal charges (at least when the arrest is not pursuant to a warrant)…. We publish our decision because, to our surprise, we have found no California case on point. However, our conclusion seems to be generally accepted.”

He explained that a malicious prosecution action requires a favorable determination of an “action” or “proceeding” that had been brought against the plaintiff. The jurist wrote:

“An arrest is not a proceeding. Moreover, a favorable termination is one that ‘indicate[s] the innocence of the accused....’….However, release from arrest does not necessarily indicate innocence; the arrestee may yet be prosecuted.”

There is some precedent that an arrest pursuant to a warrant can form the basis of an action for malicious prosecution, he noted, saying that such cases were not relevant to the appeal before his panel.

Agreement Expressed

In yesterday’s opinion, Presiding Justice Frances Rothschild said:

“[W]e decline Mikhail and Reza’s invitation to disagree with Van Audenhove, and instead conclude that its reasoning and holding remain sound.”

She declared:

“Mikhail and Reza are not entitled to amend their complaint to add causes of action they had voluntarily dismissed earlier in the litigation because Mikhail and Reza offered no explanation for their yearslong delay in seeking to do so.”

The plaintiffs cited the 1981 decision by Div. Four of the First District Court of Appeal in Hirsa v. Superior Court for its proposition that “[a]llowing the filing of such an amendment is in furtherance of justice and in keeping with the fundamental policy of our courts that cases should be decided on their merits.”

Rothschild responded:

“But in that case, the plaintiff had been diligent in seeking a non-dilatory amendment….Here, by contrast, far from diligently pursuing these causes of action, Mikhail and Reza abandoned them and only proposed to reallege them at the last possible moment when the lawsuit might otherwise be entirely concluded. They offer no explanation for their delay in reasserting these causes of action. In the absence of an explanation, this timing smacks of gamesmanship.”

Bendix declared:

“Where I part company with my colleagues is in their refusal to grant appellants leave to add previously dismissed claims based on the inference of ‘gamesmanship’ the majority draws merely from appellants’ failure to explain why they did not seek such leave below. There is also no support in the record for the majority’s finding of prejudice other than that the case would not be over.”

She added:

“Given our jurisprudence liberally allowing amendment of pleadings even if requested for the first time on appeal, and respondent’s failure to identify any prejudice, I would grant appellants’ request for leave to allege the previously dismissed claims.”

The justice remarked:

“…I note the irony in the majority’s accusing appellants of “gamesmanship” given respondent’s fraudulent (as determined by the Los Angeles County Sheriff and District Attorney) manipulation of law enforcement and judicial procedures causing, among other hardships, Mikhail’s arrest and incarceration until he was able to post substantial bail.”

The case is Bidari v. Kelk, 2023 S.O.S. 1718.

Christopher D. Beatty, Minh-Van T. Do, and Eleanor S. Ruth Miller of the Century City firm of Katten Muchin Rosenman LLP represented Mikhail and Reza and Zareh A. Jaltorossian of KP Law in Pasadena acted for Kelk.


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