KREEGER v. WANLAND

Filed 7/25/06

CERTIFIED FOR PUBLICATION

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

APPEAL from a judgment of the Superior Court of Sacramento County, Thomas M. Cecil, Judge. Affirmed.

Hansen, Culhane, Kohls, Jones & Sommer, Daniel V. Kohls, and Gregory T. Fayard for Defendants and Appellants.

Freidberg & Parker, Edward Freidberg, and Alan W. Foutz for Plaintiffs and Respondents.

Defendants, Donald M. Wanland and Law Offices of Wanland & Berstein (Wanland & Bernstein), appeal from an order of the trial court denying their special motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16 (hereafter section 425.16)). They contend plaintiffs, Christopher Kreeger and Mastagni, Holstead & Amick, P.C., the successor to Mastagni, Holstead, & Chiurazzi, P.C. (Mastagni), failed to satisfy their burden of demonstrating a probability of prevailing on the merits. We disagree and affirm the order.

Facts and Proceedings

This is the third in a series of lawsuits stemming from a minor automobile accident in 1999. We take judicial notice of our decision from an earlier appeal in one of these actions (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (Mar. 30, 2004, C042918) [nonpub. opn.] (hereafter C042918)). (Evid. Code, § 452, subd. (c).)

On August 3, 1999, Shannon Mello and Georgia Wanland were involved in an automobile accident. At the time of the accident, Mello was a clerical employee of Mastagni. She reported the accident to Michael Kelly, a Mastagni attorney. Georgia Wanland reported the accident to her husband, Donald Wanland, an attorney with Wanland & Bernstein. (C042918, at pp. 2-3.)

On August 24, 1999, Kelly filed suit on behalf of Mello against Georgia and Donald Wanland (the Wanlands). (Mello v. Wanland (Super. Ct. Sacramento County, 1999, No. 99AS04719) (hereafter Mello v. Wanland)). The complaint alleged, among other things, that Georgia Wanland caused the accident and that Shannon Mellow suffered personal injury and property damage. Because of a concern that Mastagni employees might be required to testify in the case, Christopher Kreeger was later substituted in as counsel for Mello. (C042918, at p. 6.) The case was submitted to judicial arbitration and, on July 7, 2000, the arbitrator issued an award in favor of Mello. However, the Wanlands rejected the arbitration award and the matter was tried to a jury. The jury found no liability and reached a 9-3 verdict in favor of the Wanlands. (Id. at pp. 10-11, 13.)

On April 25, 2002, the Wanlands filed a malicious prosecution action against Mastagni, Kelly and Kreeger. (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (Super. Ct. Sacramento County, 2002, No. 02AS02509)) (hereafter Wanland v. Mastagni). The Wanlands were represented in this action by Wanland & Bernstein. Mastagni, Kelly, and Kreeger filed motions to strike the complaint under the anti-SLAPP statute. The trial court granted the motions on August 9, 2002. The court concluded the Wanlands failed to establish a probability of prevailing, because they could not establish a lack of probable cause for the negligence claim in Mello v. Wanland. Judgment was thereafter entered for Mastagni, Kelly and Kreeger. (C042918, at p. 13.) The Wanlands appealed. On March 30, 2004, we affirmed the judgment in its entirety. (C042918, at p. 27.)

On October 12, 2004, Mastagni and Kreeger initiated this action against the Wanlands and Wanland & Bernstein for malicious prosecution. The Wanlands and Wanland & Bernstein filed special motions to strike under the anti-SLAPP statute, arguing the Wanlands had a tenable claim against Mastagni and Kreeger for malicious prosecution, because there was no factual basis for several of the claims that had been asserted against the Wanlands in Mello v. Wanland. In particular, they asserted the complaint in Mello v. Wanland alleged Georgia Wanland employed the operator of the vehicle that collided with the Mello vehicle, Donald Wanland was the operator of the vehicle that collided with the Mello vehicle, and Donald Wanland negligently entrusted the vehicle that collided with the Mello vehicle. Georgia Wanland asserted, in addition, that she is not liable for malicious prosecution because she relied on the advice of counsel in asserting her malicious prosecution claim.

Mastagni and Kreeger opposed the motions to strike, arguing, among other things, the complaint in Wanland v. Mastagni alleged malicious prosecution solely on the ground that there was no probable cause to believe Georgia Wanland caused the accident or that Shannon Mello was injured, and not on the ground that other allegations in the complaint in Mello v. Wanland lacked merit.

The trial court granted the special motion to strike of Georgia Wanland on the basis of advice of counsel. However, the court denied the motion of Donald Wanland and Wanland & Bernstein. The court concluded that even if these parties could have asserted a claim of malicious prosecution based on other allegations in Mello v. Wanland, they pursued a claim based solely on a lack of probable cause to believe Georgia Wanland caused the accident. The court concluded Donald Wanland and Wanland & Bernstein failed to show this limited malicious prosecution claim had merit and, therefore, Mastagni and Kreeger were entitled to pursue their own malicious prosecution claim.

Donald Wanland and Wanland & Bernstein appeal.

Discussion

I

Introduction

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