DAmbrosino v. Law Offices of Timothy J. Donahue

Filed 4/27/07 DAmbrosino v. Law Offices of Timothy J. Donahue CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from orders of the Superior Court of Los Angeles County, Brian F. Gasdia, Judge. Affirmed.

Law Offices of Scott M. Radin and Scott M. Radin for Plaintiff and Appellant.

Law Offices of Timothy J. Donahue and Timothy J. Donahue for Defendant and Respondent.

____________________

INTRODUCTION

Plaintiff Francis G. DAmbrosino appeals from an order granting defendant Law Offices of Timothy J. Donahues special motion to strike (Code Civ. Proc.,  425.16) and an order awarding defendant attorneys fees and costs incurred in connection with the motion. We affirm.

Defendant moves for dismissal of the appeal or, in the alternative, sanctions for frivolous appeal. We deny the motion.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed a complaint for malicious prosecution against Ronald Smith (Smith), the Law Offices of Timothy J. Donahue and Timothy J. Donahue individually.[1] He alleged that defendant, on behalf of Smith, filed a medical malpractice action against plaintiff. After evidentiary and issue sanctions were imposed against Smith for failure to comply with court-ordered discovery, plaintiff obtained a summary judgment. Plaintiff alleged that defendant acted maliciously and without probable cause in filing the medical malpractice action.

Defendant filed a special motion to strike, claiming the medical malpractice action was meritorious and the summary judgment erroneously was granted in that action, and there was no malicious intent in filing that action. Plaintiff opposed the motion and moved to amend his complaint to seek punitive damages.

The trial court denied defendants special motion to strike and granted plaintiffs motion to amend the complaint. It explained that plaintiff presented evidence that [defendant] knew or should have known that his clients action was without merit as early as January 23, 2003 after the deposition of Dr. [Milton E.] Legome. . . . [Defendant] was again put on notice by the Court in April 2003 and again in July 2003 that he lacked sufficient evidence to support his clients action, yet he maintained the action and opposed summary judgment without any evidence to support his clients position. . . . This evidence is sufficient to overcome [the special motion to strike].

Plaintiff then filed his first amended complaint for malicious prosecution, lien, breach of fiduciary duty and accounting. The added causes of action arose out of the failure to pay plaintiff money due him for his services to Smith.

Defendant filed a second special motion to strike and, in the alternative, demurrer to the first amended complaint. Plaintiff opposed the motion, arguing that the added causes of action were not subject to a special motion to strike and requesting sanctions for filing a second such motion after the first was denied. He also argued that the demurrer should be overruled.

The trial court granted the second special motion to strike as to the cause of action for malicious prosecution. The court noted that [m]uch discussion was made during argument about the legal effect of the deposition of Dr. Milton Legome, and whether at that point in the litigation, [defendant] had a duty to dismiss the case. Since the attorneys had very different interpretations of what Dr. Legome said, the Court, for the first time ever, actually read the entire deposition. This court can state categorically that [defendant]s claim, on behalf of his client Smith, that Smith had endured an unnecessary neck surgery at an unconscionable fee, remained legally tenable both at the inception of the lawsuit and after Dr. Legomes deposition. This court will not re-examine the evidence presented, or in any way second guess the reasons set forth by its predecessor, in sustaining [plaintiff]s motion for summary judgment. The court added that the termination of the medical malpractice action by summary judgment in plaintiffs favor did not establish a lack of probable cause or malice. The court also overruled the demurrer as to the added causes of action.

Defendant then moved for attorneys fees and costs incurred in connection with the special motion to strike. The trial court granted the motion.

DISCUSSION

Code of Civil Procedure section 425.16 (hereinafter section 425.16) provides that [a] cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. [] . . . In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. ( 425.16, subds. (b)(1), (b)(2).)

In determining whether the motion should be granted, the court engages in a two-step process. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) First, it determines whether defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (City of Cotati, supra, at p. 76; Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, 1018, disapproved on another ground in Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065.) If so, then it must determine whether plaintiff has shown a probability of prevailing on its claim. (City of Cotati, supra, at p. 76; Drum, supra, at p. 1018.)

On appeal, we review the trial courts determination de novo. (Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 184; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.) The questions are whether the defendant has satisfied his burden of establishing that section 425.16 applies (ComputerXpress, Inc., supra, at p. 999) and whether the plaintiff has satisfied his burden of making a prima facie showing of facts that, if proved at trial, would support a judgment in his favor. (Schroeder, supra, at p. 184).

Plaintiff does not dispute that defendant satisfied his burden of establishing that section 425.16 applies; section 425.16 applies to malicious prosecution actions. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741.) Plaintiff contends that (1) the trial court applied the wrong standard in reviewing the evidence submitted on the motion; (2) the trial court was bound by the factual findings in the medical malpractice action; (3) the trial court was bound by its ruling on the first special motion to strike; and (4) he satisfied his burden of establishing a probability of prevailing at trial.

Plaintiffs first claim of error is that the trial court erred in applying the general rule of Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th 728 rather than the specific rule of Zamos v. Stroud (2004) 32 Cal.4th 958. He does not identify either the general rule of Jarrow Formulas, Inc. that he claims the trial court applied or the specific rule of Zamos that he claims the trial court should have applied. He cites Zamos only for the proposition that an attorney may be held liable for continuing to prosecute a lawsuit discovered to lack probable cause. (Id. at p. 960.) He also cites the recent case of Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, which followed Zamos. (Id. at p. 296.)

The trial court did not refuse to apply the rule set forth in Zamos and Soukup. Rather, it made a determination that defendant did not discover that the medical malpractice action lacked probable cause when he deposed Dr. Legome. There was no error.

Plaintiff next asserts that under collateral estoppel principles, the trial court was bound by the factual findings in the medical malpractice action. The court in the medical malpractice action stated that Dr. Legome saw [Smith] one time, approximately one month before the operation. He reviewed no medical records taken after the surgery. For these reasons, the court ruled that Dr. Legomes conclusions were inadmissible to establish that plaintiff negligently performed the surgery.

As noted in Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319, on which plaintiff relies, collateral estoppel precludes relitigation of issues argued and decided in prior proceedings. (Id. at p. 1326.) It applies when the decision in the initial proceeding was final and on the merits and the issue sought to be precluded from relitigation is identical to that decided in the first action and was actually and necessarily litigated in that action. (Id. at p. 1327.)

Plaintiff does not analyze the application of collateral estoppel to the instant case but merely states in a conclusory manner that it applies and the trial court was bound by the findings in the medical malpractice action. The court in the medical malpractice action made an evidentiary ruling on the admissibility of Dr. Legomes deposition in opposing summary judgment. It made no factual findings as to the issue in the instant case: whether defendant had probable cause to continue prosecuting the medical malpractice action after deposing Dr. Legome. Collateral estoppel therefore does not apply. (Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America, supra, 133 Cal.App.4th at pp. 1326-1327.)

Moreover, as observed by the Supreme Court in Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at page 742, entry of a summary judgment in an underlying action does not establish lack of probable cause as a matter of law. An attorney may legitimately believe a claim is legally tenable, even if the court in the underlying action rules that the evidence presented on the summary judgment motion is insufficient to establish the claim. (Id. at pp. 742-743.) Such is the case here.

Plaintiff further claims the trial court was bound by its ruling on the first special motion to strike, in that there is no statutory right to bring a second special motion to strike, and defendants motion did not qualify as a motion for reconsideration under Code of Civil Procedure section 1008. While Code of Civil Procedure section 425.16 does not provide a right to bring a second special motion to strike, neither does it prohibit a second such motion after the complaint has been amended, as was the case here. (See Navellier v. Sletten (2003) 106 Cal.App.4th 763, 773.)

Finally, plaintiff contends that he established a probability of prevailing. He bases his contention on the rulings of the court in the malpractice action regarding the sufficiency of Dr. Legomes deposition to prove negligence. He does not review the contents of that deposition, however. The trial court in the instant action concluded that the contents of that deposition established that defendants claim that Smith had endured an unnecessary neck surgery at an unconscionable fee, remained legally tenable both at the inception of the lawsuit and after Dr. Legomes deposition.

In addressing an appeal, we begin with the presumption that the judgment or order of the trial court is correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 357.) A party seeking reversal must convince the court, by stating the law and calling relevant portions of the record to the courts attention, that the trial court decision contained reversible error. (Culbertsonv.R. D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710; accord, Mansellv. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.) Plaintiff has failed to do so.

As previously stated, the evidentiary rulings of the court in the medical malpractice action do not establish a lack of probable cause. (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at pp. 742-743.) Plaintiff cites no other evidence or authority demonstrating that plaintiff has satisfied his burden of making a prima facie showing of facts that, if proved at trial, would support a judgment in his favor. Schroeder v. Irvine City Council, supra, 97 Cal.App.4th at p. 184.) Plaintiff having failed to meet his burden, the judgment must be affirmed.

Defendants motion to dismiss the appeal or, in the alternative, for sanctions for frivolous appeal, is based on the lack of merit to plaintiffs contentions on appeal and on plaintiffs delay in filing his opening brief. Defendant cites no authority supporting the proposition that either of these circumstances justifies dismissal of the appeal. In the absence of anything more than a lack of merit and extensions of time for filing plaintiffs opening brief, we decline to award sanctions for frivolous appeal. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650-651.)

The judgment is affirmed. The motion to dismiss the appeal or award sanctions for frivolous appeal is denied.

NOT TO BE PUBLISHED

SPENCER, P. J.

We concur:

MALLANO, J.

ROTHSCHILD, J.

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[1] Plaintiff erroneously named the Law Offices of Timothy J. Donahue as a defendant, in that there is no separate entity by that name. We refer to both the Law Offices of Timothy J. Donahue and Timothy J. Donahue by the singular defendant.