Sood v. CM International Trading

Filed 3/22/06 Sood v. CM International Trading CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 SEVEN

APPEAL from an order of the Superior Court of Los Angeles County, Peter J. Meeka, Judge. Reversed and remanded.

Mitchell Reed Sussman for Cross-defendant and Appellant.

Demler, Armstrong & Rowland, Raymond H. Goettsch and Mary H. Kim, for Cross-complainant and Respondent.

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CM International Trading Corporation (CMI) appeals from the trial court's order denying its special motion to strike under Code of Civil Procedure section 425.16[1] the cross-complaint filed against it by Shashi Sood. Because the trial court erred both by finding the motion untimely and, in the alternative, by denying the motion on its merits on the ground Sood had established a probability of prevailing on his abuse of process claim, we reverse and remand the matter to the trial court with directions to enter a new order granting the motion and awarding CMI its attorney fees and costs.

FACTUAL AND PROCEDURAL BACKGROUND

1. Sood's Action Against CMI and Others for Fraud and Breach of Contract

On October 25, 2000 Sood filed an action against CMI and a number of additional defendants in part for fraud and breach of contract alleging he had been unfairly terminated from employment without receiving all compensation due to him. According to the second amended judgment entered after a jury trial in the action, the trial court (Judge Robert O'Brien) granted a directed verdict on Sood's complaint in favor of CMI; the jury returned a verdict in favor of Sood, finding some of the remaining defendants had breached an oral contract to pay Sood $300,000 in deferred compensation;[2] and the court ordered those defendants to pay Sood prejudgment interest, costs and attorney fees and Sood to pay CMI $5,000 in costs and $5,000 in attorney fees. Sood appealed from the judgment, contending the trial court had erred by directing a verdict for CMI, and from the court's posttrial order awarding attorney fees to CMI.[3]

While Sood's appeals were pending, CMI caused a writ of execution to be issued and levied on an account Sood maintained at Wells Fargo Bank to collect the costs and attorney-fees awards in its favor, a total of $10,000 plus interest. After Sood learned of the levy on his bank account, his counsel sent a letter to CMI's counsel, dated November 17, 2003, demanding withdrawal of the writ and accompanying notice of levy on the ground Sood's appeals automatically stayed enforcement of the costs and attorney-fees awards in CMI's favor and CMI was thus violating the automatic stay. The same day, Trevor Bottomly from the office of CMI's counsel sent a letter to the sheriff confirming a request to withdraw the levy on Sood's bank account. Two days later, on November 19, 2003, Sood's counsel sent another letter to CMI's counsel informing him the levy had not been withdrawn because the letter to the sheriff from his office had been signed by a secretary, not by him personally, and demanding he forward a proper notice of withdrawal to the sheriff. Later that day, CMI's counsel sent a new letter, which he personally signed, to the sheriff confirming his request to withdraw the levy on Sood's bank account. On November 24, 2003 Sood's counsel sent a letter to Wells Fargo Bank, confirming it had received notice from the sheriff's office to release Sood's funds and the release and redeposit of funds would be completed by the next morning.

On February 9, 2004 Division Five of this court affirmed the directed verdict and attorney-fees award in CMI's favor.[4] (Sood v. Mittal (Feb. 9, 2004, B164600) [nonpub. opn.].) After Division Five's opinion became final, Sood paid CMI in full the costs and attorney-fees awards, plus interest.

2. CMI's Action Against Sood for Malicious Prosecution and Abuse of Process

On June 4, 2004 CMI filed a complaint against Sood for malicious prosecution and abuse of process, alleging Sood had filed his fraud and breach of contract action against it without a good faith belief that he had been employed by CMI or that CMI was indebted to him and, in doing so, had misused the legal process â€