Lasken v. Meline

Filed 8/15/07 Lasken v. Meline CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from an order of the Superior Court of Los Angeles County.

John L. Segal, Judge. Affirmed.

Corin L. Kahn for Plaintiff and Appellant.

Hinshaw & Culbertson, John W. Sheller and Wendy Wen Yun Chang for Defendant and Respondent.

____________________

Plaintiff and appellant Ronald Lasken (Lasken) challenges the trial courts order granting defendant and respondent Stanley Raymond Melines (Meline) special motion to strike pursuant to the anti-SLAPP[1]statute, Code of Civil Procedure section 425.16.[2]

FACTUAL AND PROCEDURAL BACKGROUND

The Underlying Action[3]

In 1965, Ralph W. Boshes (Boshes), Hiram Isaih London, Sydney Sinclair, Michael S. Berman, and Melvin Lasken (Mr. Lasken) formed a partnership, the Verdugo 5, to purchase a certain parcel of real property and construct and operate an apartment building on that property. Later, Mr. Sinclair and Mr. Berman transferred their interests in the partnership to Mr. Lasken and Mr. London; Mr. London and Mr. Lasken then transferred their now 40 percent interests in the partnership to trusts.

Sometime in 2001, Boshes became the last surviving original partner and he took over full management and control of the partnership. On April 22, 2002, he filed a petition for court approval of final accounting of general partnership and for an order of termination against the London Trust,[4]Norma Jean London, Mr. Londons widow, and Lasken, Mr. Laskens heir and sole beneficiary of Mr. Laskens trust. In that litigation, Boshes represented himself; Meline represented the Verdugo 5 partnership. The matter proceeded to reference.

Throughout the lengthy reference proceedings, Boshes challenged the transfers from Mr. Sinclair and Mr. Berman to Mr. London and Mr. Lasken, respectively, and the transfers from Mr. London and Mr. Lasken to their respective trusts. Ultimately, the referee determined, inter alia, that the transfers were valid; Boshes owned a 20 percent interest in the partnership and Lasken and the London Trust each held a 40 percent interest in partnership assets. With respect to costs, the referee recommended that Boshes bear one-half of the costs of the reference because he was the major cause of the expense. In so finding, the referee expressly noted that Boshess interests and those of Meline, acting as counsel for the Partnership have corresponded virtually without exception. After conducting a hearing on the referees report, including Boshes and the Verdugo 5 partnerships objections thereto, the trial court entered judgment in favor of Lasken and the London Trust. Boshes appealed, and on August 8, 2007, we largely affirmed the trial courts judgment in the underlying action.

The Instant Action

On December 16, 2005, Lasken initiated the instant action against Boshes and Meline. The only cause of action alleged against Meline is the fourth cause of action for malicious prosecution. According to the complaint, Meline as counsel of record for Verdugo 5 but as counsel in fact for Boshes instituted the underlying action against Lasken. Lasken alleges that the underlying action was the mechanism chosen by Meline and Boshes to litigate Boshes[s] contentions that Boshes was entitled to some or all of [Laskens] 40% interest in the Verdugo 5 partnership assets. In fact, Meline agreed with Boshes[s] intentions and agreed to assist Boshes to achieve these purposes by contributing to the development and by advancing all of the arguments that Boshes made to the detriment of . . . Lasken, under the pretense of acting on behalf of the Verdugo 5. The complaint further alleges that Meline acted without probable cause and with malice.

Melines Anti-SLAPP Motion

In response, Meline filed a demurrer and special motion to strike the complaint. In his motion, Meline argued that Lasken could not demonstrate a probability of prevailing on his malicious prosecution claim because the underlying action is still pending in the Court of Appeal. Thus, Lasken could not establish the requisite favorable termination element of his claim for malicious prosecution. To support his claim, Meline sought judicial notice of (1) Boshess notice of appeal, reflecting his intent to appeal the underlying judgment on his own behalf and as a partner of the Verdugo 5; and (2) the Court of Appeal docket, which indicated that the Verdugo 5 was an appellant in the underlying action.

Lasken opposed Melines motion, arguing that the Verdugo 5, Melines sole client, had not appealed the judgment in the underlying action. In fact, the receiver had not authorized any appeal. As for the Court of Appeal docket entry, Lasken asserted that it was merely a clerical misinterpretation. With respect to the elements of probable cause and malice, Lasken averred that Meline had conceded that they had been established by not challenging them in his motion.

Meline then filed a reply. In it, he posited that Lasken conceded that a civil action for malicious prosecution will not lie while an appeal is pending because (1) he dismissed Boshes from his claim for malicious prosecution, and (2) he offered a stipulated stay of the litigation. In any event, Meline argued that his client was an appellant in the underlying action because Boshes had filed an appeal on behalf of the Verdugo 5. The fact that the receiver had not authorized an appeal was irrelevant; not only did the appeal challenge the findings of the receiver, a receiver is not a party. Moreover, pursuant to the one final judgment rule, regardless of who was deemed the appellant in the underlying action, the Court of Appeal opinion would affect everyone in the underlying action. Finally, Meline contended that Lasken had not established a probability of prevailing on the probable cause and favorable termination elements of malicious prosecution.

On February 28, 2006, the trial court granted Melines anti-SLAPP motion. It found that Lasken had not established the requisite prima facie showing of favorable termination of the underlying action.[5] Relying upon Friedman v. Stadum (1985) 171 Cal.App.3d 775, 778 (Friedman), Gibbs v. Haight, Dickson, Brown & Bonesteel (1986) 183 Cal.App.3d 716, 719 (Gibbs), Feld v. Western Land & Development Co. (1992) 2 Cal.App.4th 1328, 1335 (Feld), Merron v. Title Guarantee & Trust Co. (1938) 27 Cal.App.2d 119, 122123 (Merron), and Ray v. First Federal Bank (1998) 61 Cal.App.4th 315, 318320 (Ray), the trial court noted that an action for malicious prosecution will not lie while an appeal in the underlying action is pending. Because the appeal in the underlying action is still pending in the Court of Appeal, [Lasken] cannot establish favorable termination of the underlying action.

In so ruling, the trial court refused Laskens request to interpret the notice of appeal as initiating an appeal on behalf of Boshes only. It found the notice of appeal not entirely clear, and deferred to the Court of Appeal docket, which was treating the Verdugo 5 as an appellant. Moreover, the trial court was inclined to interpret the notice of appeal liberally, as including the Verdugo 5, pursuant to California Rules of Court, rule 1(a)(2).[6]

Alternatively, the trial court held that even if the Court of Appeal determines that the partnership has not appealed, or even [if] this court were to construe the notice of appeal as not including the partnership, the fact remains that the underlying dispute that gives rise to this malicious prosecution action is before the Court of Appeal as part of Boshes[s] appeal. Whether the rule of Friedman, Gibbs, Merron, and Ray is stated in the passive or the active voice, the Court of Appeal is reviewing what occurred in the underlying case. Therefore, under Friedman, Gibbs, Merron, and Ray, [Laskens] malicious prosecution action is premature.

Next, the trial court found that Lasken had essentially concede[d] that he could not establish the favorable termination element of his malicious prosecution cause of action by not addressing the issue.

Finally, the trial court denied Laskens request to stay the litigation, finding Friedman, Gibbs, and Ray dispositive on the issue. The trial court rejected Laskens exclusive reliance upon Feld because it predated section 425.16.

Laskens Motion for Reconsideration

On March 6, 2006, Lasken filed a motion for reconsideration. The new fact offered was the revision of the Court of Appeal docket, which no longer included the Verdugo 5 as an appellant. Meline opposed Laskens motion for reconsideration, and the trial court denied it.

Judgment and Appeal

Judgment was entered, and this timely appeal followed.

DISCUSSION

I. Standard of Review

We review the trial courts rulings on a SLAPP motion independently under a de novo standard of review. [Citation.] (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929.)

II. The Anti-SLAPP Statute

Section 425.16, subdivision (b)(1) provides: 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. The statute posits . . . a two-step process for determining whether an action is a SLAPP. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) First, the defendant bringing the special motion to strike must make a prima facie showing that the anti-SLAPP statute applies to the claims that are the subject of the motion. (Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 819.) Once a moving defendant has met its burden, the motion will be granted (and the claims stricken) unless the court determines that the plaintiff has established a probability of prevailing on the claim. (DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567568.)

III. The Trial Court Properly Granted Melines Anti-SLAPP Motion

Laskens malicious prosecution action is subject to the anti-SLAPP statute. (Jarrow Formulas, Inc.v. LaMarche (2003) 31 Cal.4th 728, 741.) Thus, the burden shifted to him to show, through competent, admissible evidence, a probability of success on the merits of his claim in order to defeat Melines anti-SLAPP motion. (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 14961498.) Accordingly, Lasken was required to establish that the underlying action (1) was commenced by Meline or at his direction, (2) pursued to a termination in Laskens favor, (3) brought without probable cause, and (4) initiated with malice. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871872.) Quite simply, Lasken could not establish favorable termination.

California courts have adopted the general rule that a civil action for malicious prosecution will not lie while an appeal in the underlying action is pending. (See, e.g., Friedman, supra, 171 Cal.App.3d at pp. 778779; Ray, supra, 61 Cal.App.4th at p. 319; Gibbs, supra, 183 Cal.App.3d at p. 721 [a civil action for malicious prosecution is premature, and will be dismissed, if brought while an appeal in the underlying action is pending].) At the time that Lasken initiated his malicious prosecution claim, Boshess appeal of the judgment in the underlying case was still pending. Thus, Laskens action was premature, and the trial court properly granted Melines anti-SLAPP motion.

On appeal, as in the trial court, Lasken argues that his claim against Meline was not premature. His theory is as follows: Meline represented the Verdugo 5, not Boshes, in the underlying action. Because only Boshes appealed the judgment in the underlying action, the judgment in favor of Lasken and against the Verdugo 5 partnership, Melines only client in the underlying action, is final. We cannot agree.

First, the trial court did not abuse its discretion in construing Boshess notice of appeal as an appeal on behalf of the Verdugo 5 as well, thereby defeating Laskens assertion that only Boshes was an appellant of the underlying judgment. As the trial court correctly noted, notices of appeal are liberally construed. (Cal. Rules of Court, rule 8.100(a)(2) [formerly rule 1(a)(2)].) The notice of appeal in the underlying action provides, in relevant part: Boshes, cross-defendant individual and as Partner of The Verdugo 5, a General Partnership, and as its winding up partner appeals. Liberally construed, this language suggests that Boshes was appealing the underlying judgment on behalf of the Verdugo 5 partnership. Accordingly, the trial court acted within its discretion in determining that Melines client, the Verdugo 5, was an appellant in the prosecution of the appeal of the judgment in the underlying action.

Even if the trial court had erred in its interpretation of the notice of appeal, we would still conclude that the trial court properly granted Melines special motion to strike. Laskens complaint frames the issues for our review. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 654, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.) According to Laskens malicious prosecution claim, Meline acted as counsel in fact for Boshes. In fact, the underlying action was the mechanism chosen by Meline and Boshes to litigate Boshes[s] contentions that Boshes was entitled to some or all of [Laskens] 40% interest in the Verdugo 5 partnership assets. [Lasken] is informed and believes that Meline agreed with Boshes[s] intentions and agreed to assist Boshes to achieve these purposes by contributing to the development and by advancing all of the arguments that Boshes made to the detriment of . . . Lasken, under the pretense of acting on behalf of the Verdugo 5. Moreover, Meline failed to reasonably investigate and ignored facts known to him in representing and continuing to represent Boshes and by asserting Boshes[s] arguments, by filing pleadings and in other manners taking positions on Boshes[s] behalf without facts or law to support Boshes[s] many contentions.[7]

In other words, what Boshes did in the underlying action can be attributed to Meline, and whether Meline engaged in any wrongdoing is dependent upon the success of Boshess appeal. It follows that our review of Boshess appeal necessarily encompasses review of Melines conduct in the underlying action. Therefore, given Boshess pending appeal, Laskens malicious prosecution claim against Meline was premature at the time it was filed.

IV. Laskens Request for a Stay

Lasken contends that the trial court erred by failing to issue a stay to prevent the running of the statute of limitations. As pointed out by Meline, Lasken never formally moved for a stay; he simply requested a stay as an afterthought in various papers filed in the trial court, perhaps as a last ditch effort to save his claim from dismissal. Even if he had properly moved for a stay, it was properly denied. As the trial court found, Laskens claim against Meline was premature pending resolution of Boshess appeal, and thus subject to dismissal. (Gibbs, supra, 183 Cal.App.3d at p. 721.) Ordering a stay would have defeated one of the very purposes of the anti-SLAPP statutegranting a party to a SLAPP suit a quick and ready dismissal. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055.)

Regardless, there appears to be no reason for a stay. If, as we have determined, that Lasken cannot proceed against Meline because the issues giving rise to Laskens claim are pending, then, certainly, the statute of limitations cannot be deemed to have run.

DISPOSITION

The order of the trial court is affirmed. Meline is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

_____________________, P. J.

BOREN

_____________________, J.

DOI TODD

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[1] SLAPP is an acronym for strategic lawsuit against public participation. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 813, overruled in part on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.)

[2] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

[3] A complete factual history of the underlying action is set forth in our opinion filed on August 8, 2007, London v. Boshes (B182474 [nonpub.opn.]).

[4] The complete name of the London Trust is the Restated Revocable Living Trust of Hiram Isaih London and Norma Jean London, restated on October 7, 1994.

[5] The trial court expressly did not reach the issues of probable cause and malice.

[6] Rule 1(a)(2) has been superseded by California Rules of Court, rule 8.100(a)(2).

[7] In fact, the trial court in the underlying action determined that Meline was acting as Boshess attorney when it adopted the referees report and finding that Boshess interests and those of Meline, who purportedly acted solely on behalf of the Verdugo 5, corresponded virtually without exception.