Friday, June 12, 2026
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Court of Appeal:
Family Link of Lawyer, Party Does Not Gut Probable Cause
In Malicious Prosecution Case, Opinion Rejects View That Putative Class Plaintiff’s Relationship With Counsel That Was Not Disclosed Until Discovery Invalidates Lawsuit as Matter of Law
By Kimber Cooley, associate editor
Div. One of the Fourth District Court of Appeal has rejected an assertion, in a malicious prosecution case, that the fact that a former putative class representative is the sister-in-law of one of the attorneys who filed the case establishes that the firm and the party responsible for the underlying matter lacked probable cause to pursue the asserted claims as a matter of law.
Acting Presiding Justice William Dato authored Wednesday’s opinion, joined in by Justices Truc T. Do and Jose S. Castillo, saying:
“[E]ven if there were clear and uncontested authority for the proposition that an attorney cannot represent his sister-in-law as the named plaintiff, we are not convinced this would support [the] malicious prosecution claim.”
The question arose in a protracted dispute between the clothing company, Citizens of Humanity LLC, and the founders of the now-defunct San Diego-area firm Del Mar Law Group LLP, John Donboli and JL Sean Slattery.
Donboli and Slattery filed a putative class action against the denim giant in 2014 on behalf of a proposed class representative, Louise Clark, who alleged that the company falsely marketed certain jeans as having been “Made in U.S.A.” when certain components were produced outside of the country in violation of Business and Professions Code §17533.7, governing the use of such labels, as well as the Unfair Competition Law and other California statutes.
During discovery, Citizens learned that Clark was Slattery’s sister-in-law and had served as a named plaintiff in other putative class actions initiated by the firm. Crying foul, the company moved to have the firm disqualified; Del Mar responded by seeking to substitute another party, Coni Hass, as plaintiff and to withdraw Clark from the lawsuit.
New Plaintiff
Hass, it turned out, had been contacted by an employee of the firm after she entered her information on a website titled “Top Class Actions” regarding a complaint that an essential oil product had been mislabeled. She asserted that she had also purchased a pair of Citizens jeans in reliance on the “Made in the U.S.A.” label.
In 2016, District Court Judge Janis L. Sammartino of the Southern District of California granted the request for substitution and denied the disqualification motion. That same year, the Legislature amended §17533.7 to liberalize the use of a “Made in the U.S.A.” label on products containing a certain percentage of “foreign-sourced materials,” and Citizens moved to dismiss the case, arguing that their jeans were now in compliance.
Sammartino agreed and granted the motion, with leave to amend. After Hass declined to file an amended pleading, the case was dismissed in February 2017.
Citizens responded by filing a malicious prosecution complaint against Clark, Hass, Del Mar, Slattery, and Donboli the following year in state court. After Hass passed away, the company dismissed the case against her estate.
The remaining causes of action proceeded to trial, and the company waived its right to a jury on the issue of probable cause.
On Jan. 14 of last year, San Diego Superior Court Judge Wendy M. Behan ruled that the plaintiff had not established that the defendants lacked probable cause for the underlying litigation, concluding that it was beyond dispute that, at the time the operative complaint was filed, the “Made in the U.S.A.” labels violated §17533.7 and that there was “zero evidence” that Clark was a shill plaintiff “sent out by the attorneys to buy the jeans.”
Improper Plaintiff
On appeal, Citizens argued that the defendants maliciously pursued the putative class action because Clark was an improper plaintiff as a matter of law, pointing to the 2005 decision by this district’s Div. One in Apple Computer Inc. v. Superior Court, citing language noting that a majority of courts have refused to permit class attorneys or their relatives to act as representative parties.
Saying that the quoted language was “[a]t best…dictum,” Dato wrote:
“In Apple, the court considered whether to disqualify…firms representing the named plaintiff in a class action. The plaintiff worked as an attorney for one of the firms….While the analysis discusses cases involving relatives, the propriety of relatives serving as class representatives was not directly at issue. Rather, the plaintiff in Apple stood to gain monetarily from his firm’s recovery of attorney fees….Citizens presents no information about any ‘financial relationship’ between Slattery and Clark, and we do not think it reasonable to presume ‘interdependence’ solely based on their relationship as siblings-in-law.”
He added:
“Citizens argues ‘no reasonable attorney would have brought suit under these circumstances,’ and thus Law Group ‘lacked probable cause’ to pursue the claim. But whether Law Group could permissibly represent Clark in the underlying litigation does not affect whether defendants had probable cause to bring the claim.”
Saying that, “Clark could have pursued the claim with different counsel or Law Group could have proceeded with a different representative plaintiff, which is what the district court authorized here after Clark decided to withdraw,” he opined that “[i]n neither event would the conflict be fatal to the action against Citizens.”
The case is Citizens of Humanity LLC v. Donboli, 2026 S.O.S. 1701.
Donboli was disbarred by order of the California Supreme Court in 2024 after a default was entered against him for failing to respond to disciplinary charges relating to his handling of client-trust accounts.
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