Retra Financial v. Salmonsen

Filed 1/17/07  Retra Financial v. Salmonsen CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

            APPEAL from judgment of the Superior Court of Los Angeles County, Kenneth Freeman, Judge.  Affirmed.

            Lamb & Kawakami, Robert M. Gilchrest and Priya Mohan for Plaintiff and Appellant.

            Eugene R. Salmonsen, in pro. per., for Defendant and Respondent.

            Law Offices of Joseph E. Porter, III and Joseph E. Porter, III for Defendant and Respondent Thomasina M. Reed.

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            The issue in this appeal is whether the trial court properly dismissed a complaint for malicious prosecution and abuse of process against two defendants.  One defendant was dismissed after his demurrer was sustained without leave to amend.  The other was dismissed when the court granted her special motion to strike.  We conclude that the appellant, Retra Financial, cannot demonstrate the requisite termination in its favor on the malicious prosecution cause of action and that the abuse of process cause of action cannot be based upon the recording and maintenance of a lis pendens in the underlying action.  The trial court properly dismissed the action.

FACTUAL AND PROCEDURAL SUMMARY

            We take our factual summary in part from the allegations of the complaint and from the evidence submitted on the special motion to strike. 

A.  Factual Background

            In February 1999, Westland Architecture & Development Corporation (Westland) acquired an option to purchase an office building (the building) in Los Angeles through a bankruptcy sale.  The option was to expire June 30, 1999.  In May 1999, Westland conveyed its interests to Retra Financial in exchange for Retra's promise to assume Westland's corporate debt.  Retra exercised the option and purchased the building in June 1999. 

B.  The First Round of  Legal Actions

1.  Westland's Actions

            In August 1999, Westland and its owner, Youless J. Valentine[1] sued Retra, Leodis C. Matthews, and Matthews & Partners.  (L.A. Super. Ct. case No. BC214701.)  Matthews, an attorney, is the sole owner of Retra.  Matthews and his firm, Matthews & Partners, had an attorney-client relationship with Westland between January and May 1999. [2]  Each plaintiff alleged causes of action for legal malpractice, breach of fiduciary duty, and breach of a legal service agreement.  Valentine also alleged conversion.  A lis pendens was recorded against the building by Westland. 

            At some point Retra moved to expunge the lis pendens.  In June 2000, while that motion was pending, Westland and Valentine filed a new cross-complaint alleging a claim to quiet title and seeking an equitable lien against Retra and Matthews.  Thomasina Reed was counsel for Westland in that action.  The present malicious prosecution complaint alleges that the trial court granted Retra's motion for summary adjudication of Westland's quiet title claim on the grounds that â€