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Court of Appeal:
Dominguez Firm Probably Liable for Malicious Prosecution
By a MetNews Staff Writer
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The heavily advertised Dominguez Firm has failed to show a probability of prevailing on the merits in a malicious prosecution action filed against it, the Court of Appeal for this district held yesterday. |
The Dominguez Firm—widely touted on bus ads and on billboards—will probably lose on the merits in a malicious prosecution action brought by a business that was sued by the lawyers on behalf of a woman who claimed to have been wrongfully terminated even though she had signed a paper saying she was voluntarily resigning, the Court of Appeal for this district held yesterday, affirming the denial of an anti-SLAPP motion.
In the underlying action, filed on Sept. 29, 2020, Victoria Flores, the Dominguez Firm’s client, also made claims against her former employer, Parter Medical Products, under California’s Fair Employment and Housing Act (“FEHA”).
Los Angeles Superior Court Judge Christopher K. Lui on Aug. 18, 2022, granted summary judgment in favor of Parter Medical.
On July 20, 2023, Parter Medical then sued the Dominguez Firm for malicious prosecution. Also named as defendants were Jace H. Kim, Carlos Andres Perez, and Javier Ramirez, associates in the firm whose names appeared on filings in the action against Parter Medical.
Los Angeles Superior Court Judge Edward B. Moreton Jr. on Nov. 14, 2023, denied the defendants’ motion under the anti-SLAPP statute, Code of Civil Procedure §425.16, saying:
“[T]here is at least minimal merit to Plaintiff’s claim that Defendants acted with malice. Defendants commenced the Underlying Action and continued to prosecute it, knowing that Plaintiff resigned and was not terminated; indeed Defendants themselves drafted the resignation letter. Defendant also continued to prosecute the Underlying Action, knowing that Plaintiff was restricted from performing an essential function of her job”
The law firm and the three associates appealed.
Viramontes’s Opinion
Div. Eight, in an unpublished opinion by Justice Victor Viramontes, upheld Moreton’s ruling.
The justice noted that it is undisputed that the first prong of the anti-SLAPP—the requirement that the present litigation stems from protected conduct—is met. Turning to the second prong—a showing by the plaintiff of the probability of prevailing on the merits—he said it is also agreed that the seminal requirement for a malicious prosecution action, that the underlying lawsuit was resolved in favor of the party now suing, is satisfied.
“Defendants’ anti-SLAPP motion contested only the existence of the elements of probable cause and malice,” Viramontes wrote. “We conclude Parter Medical met its burden of showing the requisite minimal merit to proceed with its malicious prosecution action.”
Addressing the lack of probable cause, he recited that the defendants knew, before filing the complaint against Parter Medical, that the company and its workers’ compensation insurer regarded Flores as a current employee; that Flores had a disability that precluded her from doing her job; that she opted to voluntarily resign and receive a one-time payment to settle her claim rather than efforts being made to accommodate her disability.
Weak Effort
Viramontes said:
“Despite knowing these facts, defendants assert there was probable cause to believe their client had been wrongfully terminated and denied the opportunity to return to work despite her ability to do so. In his supporting declaration, defendant Kim states, in conclusory fashion, that the underlying action was not brought ‘for an improper purpose,’ and that ‘there was a good faith belief in the merits of the action as the evidence and legal authority relied upon provided probable cause for bringing the action and negated any possible malice.’ He makes no effort to explain or discuss the significance of the information the Dominguez Firm necessarily obtained during its representation of Flores in the workers’ compensation proceedings.”
The defendants maintained that it is “significant” that Lui, in granting summary judgment to Parter Medical, discussed at length evidence put forth on behalf of Flores’s cause, showing that what they adduced was weighty.
In response, Viramontes pointed out that Code of Civil Procedure §437c(g) requires that a judge, in granting summary judgment, “specify the reasons” for the ruling “specifically refer to the evidence proffered in support of and, if applicable, in opposition to the motion that indicates no triable issue exists.”
“The trial court here simply complied with this statutory requirement to explain the bases of its ruling,” he said.
Element of Malice
As to the element of malice, the jurist commented:
“The showing by Parter Medical adequately establishes, for purposes of defeating the motion, that the Dominguez Firm and its attorneys knew, from its representation of Flores in the workers’ compensation proceeding, that she had resigned and had not been terminated and that she had physical limitations that impacted her ability to continue to do her job as a packer. The reasonable inference from that evidence is that the claims against Parter Medical were knowingly pursued for the improper purpose of attempting to obtain additional monies from Parter Medical without regard to the merit of the wrongful termination and FEHA claims.”
At least, the defendants argued, the anti-SLAPP motion should have been granted in favor of Perez and Ramirez because, although their names appeared on papers filed in Flores’s action, there was no evidence that they actually did any work on the case. Viramontes said:
“Parter Medical’s evidence demonstrated that Perez and Ramirez were listed as counsel of record on the operative complaint and on the summary judgment opposition papers. One reasonable inference from that evidence is that they were aware they were listed as cocounsel of record….We conclude it was sufficient evidence to meet the standard for opposing the anti-SLAPP motion. The trier of fact will have to decide whether, in light of all the evidence ultimately presented on the merits, it is sufficient to support judgment in Parter Medical’s favor.”
The case is Parter Medical Products v. The Dominguez Firm, B335336.
Michael McCarthy and Howard Smith of the Encino firm of Nemecek & Cole acted for the Dominguez Firm and its three associates. Century City attorney Al Mohajerian acted for Parter Medical.
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