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Law Firm Versus Law Firm Lawsuit Alleging Malicious Prosecution May Continue—C.A.
Egerton Says Anti-SLAPP Motion Was Properly Denied
By a MetNews Staff Writer
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CLIFTON W. ALBRIGHT |
The Court of Appeal for this district on Friday affirmed an order denying an anti-SLAPP motion filed by three lawyers and their law firm in their effort to defeat a malicious prosecution action brought against them by a lawyer and his firm.
Clifton W. Albright and his firm of Albright, Yee & Schmit, APC, is suing Michael Zweiback, Rachel L. Fiset, Erin Perez-Coleman, and their law firm of Zweiback, Fiset & Coleman LLP. Both firms are located in downtown Los Angeles.
Friday’s opinion by Justice Anne H. Egerton of Div. Three affirms an order by Los Angeles Superior Court Judge Elaine Lu denying a special motion to strike the cause of action for malicious prosecution. (She did grant the motion to strike other causes of action, which Albright and his form did not appeal.)
Allegation of Bribery
The Zweiback firm had sued the Albright parties in a qui tam action alleging that they landed a contract for legal services with the board of the West Valley Water District through bribery. There was a favorable determination as to Albright and his firm and they sued under various theories.
Denying the anti-SLAPP motion as to the cause of action for malicious prosecution, Lu found that the plaintiffs met their burden of demonstrating a probability of prevailing on the merits (the second prong of Code of Civil Procedure §425.16) by showing a lack of probable cause for the suit against them and malice.
Egerton wrote:
“The trial court in the qui tam action found the allegations against Albright were insufficient to state a claim, and rightly so. Despite asserting the Board paid Albright’s invoices ‘[a]s a result of illegal kickbacks and bribes,’ the complaint did not allege that Albright had successfully bribed any Board member. Nor did it identify any other specific misconduct by Albright that could form the basis for a CFCA claim. Instead, the claims were premised entirely on innuendo and speculation. As the trial court astutely observed, without more specific allegations of misconduct, the complaint was essentially a ‘smear.’ No reasonable attorney would believe the allegations were sufficient to state a claim against Albright.”
The jurist observed:
“While reports of widespread corruption might raise suspicions about everyone associated with the Water District, they do not provide probable cause to institute an action against Albright specifically.”
Malice Shown
Addressing the malice element, Egerton noted that, aside from the lack of any evidence of bribery by Albright and his firm, there is another factor. Zweiback and his partners were representing the chair of the water district board, Clifford Young (now deceased) at a time when Albright, as lawyer for the board, was looking into allegations against Young.
Egerton said:
“By naming Albright in the complaint, the qui tam lawyers would have helped to discredit Albright and his investigations into their client. While far from overwhelming, when considered with the other circumstances under which the qui tam lawyers filed the complaint, this evidence is sufficient to meet Albright’s burden to show malice.”
The case is Albright, Yee & Schmit v. Zweiback, B315967.
Heather L. Rosing and Harold C. Trimmer of the San Diego office of Klinedinst PC were attorneys on appeal for the Zweiback parties. Albert Robles, the former mayor of Carson and an unsuccessful candidate last year for the Los Angeles Superior Court, represented Albright and his firm.
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