Summerfield v. Galante

Filed 10/11/07 Summerfield v. Galante CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Mary Thornton House, Judge. Affirmed in part and reversed in part.

Law Offices of Jay R. Stein, Jay R. Stein; Pircher, Nichols & Meeks and James L. Goldman for Plaintiffs and Appellants.

Randolph & Associates, Donald C. Randolph and Yu-Chun Wang for Defendant and Respondent.

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Defendant and respondent Edward Elio Galantes attorney, Simon Bull, obtained a writ of arrest in Zimbabwe against plaintiff and appellant Topaz Summerfield,^[1]as part of Galantes attempt to recover property from his estranged wife, who is Topazs sister. Topaz and her infant daughter, plaintiff and appellant Sable Summerfield, were arrested and incarcerated after Zimbabwe authorities arrived to serve the writ of arrest. A Zimbabwe judge later ruled that there was no factual basis for the writ of arrest as to Topaz. Upon their return, Topaz and Sable filed an action against Galante in Los Angeles.

Topaz and Sable appeal from a judgment following a jury trial in favor of Galante in this action arising out of their imprisonment. Topaz and Sable contend: (1) there was no basis for the writ of arrest to be issued against Topaz and therefore Topaz and Sable were wrongfully arrested as a matter of law; (2) the jurys finding that Galante caused Topaz and Sable to be falsely imprisoned is inconsistent with their finding that Galantes conduct was not a substantial factor in causing their harm; (3) there is no substantial evidence to support the jurys finding that Galante relied on the advice of his counsel in filing and continuing to prosecute the writ of arrest proceeding; (4) the trial court erred by excluding the final order in the underlying case and instructing the jury as to its contents; (5) the trial court erred by excluding evidence from an interim psychological report prepared for Galantes divorce proceedings; (6) the trial court erred by excluding the video portion of Attorney Bulls deposition; (7) the trial court erred by refusing to reopen the evidence during closing argument to allow additional evidence to aid the jury in deciphering Attorney Bulls handwritten notes; (8) the trial court abused its discretion by denying a motion to strike Galantes advice of counsel defense as a sanction for discovery abuse and improper litigation tactics; and (9) a new trial should have been granted based on Galantes trial counsel Donald Randolphs pervasive misconduct during argument.

We conclude the jurys special verdict on false imprisonment is inconsistent as a matter of law and the special verdict on false arrest was unsupported by the evidence. We further conclude there is no substantial evidence to support the jurys finding that Galante relied on Attorney Bulls advice in continuing the underlying legal proceedings against Topaz. The trial court properly excluded the evidence at issue, or the exclusion of the evidence was harmless. The sanctions granted by the trial court for discovery abuse were not an abuse of discretion, and the trial court properly denied the motion for a new trial based on attorney misconduct, because Topaz and Sable did not object to Attorney Randolphs statements during closing argument. Based on these conclusions, we reverse the judgment as to the causes of action for false arrest, false imprisonment, and malicious continuation of a civil proceeding. In all other respects, we affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

Family History

Gerald Summerfield and his wife Shaina Summerfield raised their children Jeremy, Topaz, and Jacaranda in Zimbabwe. Galante, who was born in San Francisco, married Jacaranda in 1985. They lived in Northern California for several years and have two children.

Topaz moved to Los Angeles in 1987 and developed a business importing African art. She returned to Zimbabwe to visit her parents every year.

In 1992, Galante and Jacaranda moved to Zimbabwe with their children. They lived on a farm called Machera Farm. Galante owns or has an interest in businesses in Zimbabwe, California and Nevada. In February 1998, Galante and Jacaranda separated. Galante moved out of the family home and left the marital property at the farm in Jacarandas custody. In November 1998, Jacaranda filed for divorce in Zimbabwe.

Topaz gave birth to her daughter Sable in 1999. To spend more time with her daughter, she sold her business and worked as a consultant.

Jacaranda dismissed the divorce proceeding in Zimbabwe in December 2000, and Galante filed for divorce in Zimbabwe the following day. In September 2001, Jacaranda filed a petition for divorce in California.

Jacaranda decided to return to Northern California with the children. In early January 2002, she arranged for the property at the farm to be packed and stored. Shaina was at the farm during the packing, while Gerald visited the farm later in the month. Most of the property was taken to a storage facility where it was stored under the name Mrs. Ferrera. Jacaranda stored some of the property at a staff members home and some of the property at her parents home.

On January 8, 2002, Jacaranda and the children left Zimbabwe without notifying Galante, who was on vacation with in South Africa. She asked her parents not to reveal her whereabouts. The headmaster from the childrens school called Galante while he was in South Africa and informed him that Jacaranda had taken the children to the United States.

On January 22, 2002, Topaz and Sable arrived in Zimbabwe for their annual visit.

Galante Seeks to Recover the Property

On January 28, 2002, Galante obtained an order in the Zimbabwe divorce proceeding authorizing the deputy sheriff to collect a 20-page list of property at the farm and give it to Galante pending the outcome of the action. Galante accompanied the deputy sheriff to the farm and found most of the property was gone. The staff at the farm told Galante that Jacarandas parents had assisted her in removing the property.

On January 29, 2002, Galante drove to the Summerfield home with his girlfriend and two police officers. An officer knocked on the door of the house and brought Gerald out to the car. Galante repeatedly screamed, You[re] going to jail Gerald, and spat on him several times. The police had to restrain Galante to prevent him from assaulting Gerald. Gerald obtained a restraining order against Galante.

Jacaranda told Galante that she had stored property at the storage facility, her parents home, and a staff members home. On January 31, 2002, Galante obtained an amended order authorizing the deputy sheriff to collect the property wherever he could locate it.

The deputy sheriff visited the Summerfield residence to collect property on the list. Gerald and Shaina told the deputy sheriff that they had some of Galantes property and showed him where it was. Topaz learned for the first time that her sister had stored property at their parents house. The deputy sheriff returned twice to collect Galantes wine collection and a car. The deputy sheriff told Galante that Shaina and Gerald said the wine collection and the car were all of the Galante property they had in their possession.

Galante accompanied the deputy sheriff to the storage facility where they found many of the items on the list, as well as several empty frames. They located farm equipment and other possessions at the staff members home.

Galante revised the list of missing property to account for items that had been located. The revised list was two pages and included approximately 18 paintings or lithographs, other artwork, sterling silver place settings, an oak filing cabinet, photo albums, an arc welder, a .38 caliber revolver, and a 1982 Rolls Royce automobile.

Galante gave the revised list to the deputy sheriff and asked him to return to the Summerfield residence and ask specifically about the items on the revised list. The deputy sheriff said he returned to the Summerfield residence, reviewed every item on the list with Gerald, and Gerald said he did not have any of the property.

On February 25, 2002, Galante spoke to Topazs cousin Richard Summerfield. Richard said Gerald, Shaina, and Topaz were planning to drive to South Africa on March 3, 2002, for a vacation, to avoid any potential violence during the general elections scheduled for March 9. In fact, although Gerald, Shaina, and Topaz originally planned to drive to South Africa, Gerald succeeded in having his name reinstated on the voting rolls. Gerald decided to stay in Zimbabwe and Topaz purchased airline tickets to South Africa for herself and Sable, leaving on March 6, 2002.

In February 2002, Galante met with his Attorneys Adrian de Bourbon, Cameron Hunt, and Rita Meiring at Attorney de Bourbons office. Attorney Bull was late to the meeting. Galante stated at trial that he discussed Gerald, Shaina, and Topazs travel plans at the meeting and Attorney Bull advised him that he could proceed through an application for arrest tamquam suspectusde fuga to protect his property. Tamquam suspectus de fuga means suspecting a person is going to flee to evade payment or fulfillment of an obligation. Attorney Bull was asked in his deposition whether the meeting took place before or after Galante learned of Gerald, Shaina, and Topazs travel plans. Attorney Bulls response was unclear. Attorney Bull said it was Attorney Hunt or Attorney de Bourbon who mentioned the possibility of an application for an arrest tamquam suspectus de fuga. Attorney Bull did not believe a decision was reached at the meeting whether to seek the issuance of a writ of arrest. However, Attorney Bull has no handwritten or typed notes from the meeting.

Galante Files Legal Action

Attorney Meiring called Attorney Bull on the morning of February 28, 2002, and advised him of the concern over Gerald, Shaina, and Topazs travel plans. She asked Attorney Bull to prepare the proceedings necessary to protect Galantes interest in the property.

That day, Attorney Bull filed a summons and particulars of claim on Galantes behalf against Jacaranda, Gerald, Shaina, and Topaz. The summons stated that Galante requested an order for the return of property wrongfully held by the defendants, or alternatively the market value thereof, and costs of suit. The defendants were required to enter an appearance within ten days and notify Galantes legal practitioner if they wished to oppose the claims.

The particulars of claim stated in pertinent part: During the period between 7 January 2002 and 22 January 2002, [Jacaranda], with the assistance of [Gerald, Shaina and Topaz], vacated the former matrimonial home, and packed up and removed all its contents. Galante demanded the items in their possession and they had failed to restore them. Therefore, he requested judgment against Jacaranda, Gerald, Shaina, and Topaz, jointly and severally, for an order directing the return of the property on the attached two-page list or payment of damages.

Galante did not review or sign the paperwork before Attorney Bull filed it with the Zimbabwe court. He did not cause the false allegation that Topaz participated in packing the property at the farm to be included in the particulars of claim. On Friday, March 1, 2002, a copy of the summons and particulars of claim was delivered to the Summerfield property and left in the mail box. Upon receiving it, Topaz called Anthony Brooks, who was Jacarandas attorney in the divorce proceeding in Zimbabwe. Attorney Brooks told her to send him the documents and he would handle the matter on Monday.

However, Attorney Bull also prepared an urgent chamber application to obtain a writ of arrest, including a certificate of urgency and a founding affidavit. Attorney Bull certified that the application was urgent because: Gerald, Shaina, and Topaz almost certainly had a number of very valuable and very portable items of Galantes and they intended to leave Zimbabwe with the items over the weekend, probably very early on Sunday morning, March 3, 2002. In addition, Galante had instituted legal proceedings against Topaz and needed to attach her person in order to confirm jurisdiction, for if she left Zimbabwe, his claim against her would be permanently lost.

Galantes affidavit in support of the application stated that he believed Gerald, Shaina, and Topaz intended to remove some or all of the items on the list of property from the country, because valuable lithographs had been removed from their frames and were missing. He had been advised that they were departing Zimbabwe on Sunday, March 3, 2002. There was no reason to remove the art from the frames other than to make it more portable for removal from Zimbabwe. Galante requested an order for the arrest of Gerald, Shaina, and Topaz until such time as they deliver up the items in question, or alternatively, furnish security for their value, and which I conservatively estimate at US $250,000.00

Galante stated as to Topaz: [Topaz] is a resident and domiciled in the United States of America and has only recently travelled to this country for reasons of which I am not clear, but which I verily believe relate to the current pending divorce proceedings between myself and Jacaranda. [] I am certain that [Topaz] owns no assets whatsoever in Zimbabwe and has made her life in the United States of America. [] Consequently I have no assets of [hers] to attach in order to confirm the jurisdiction of this Honourable Court in respect of the action against her, and the only way that I can properly do so, therefore, is to attach her person in order to found or confirm jurisdiction in my action against her.

Attorney Bull asked Attorneys Hunt and de Bourbon to review the urgent chamber application, the affidavit, and the certificate of urgency before he filed them with the court. Attorney Bull filed the application on Galantes behalf on Friday afternoon, March 1, 2002. No notice of the proceeding was provided to Gerald, Shaina, Jacaranda, and Topaz. The judge assigned to the matter put it over to the following day. Attorney Bull expected that when the writ of arrest was served, Gerald would choose to post security.

In deposition, Attorney Bull stated that Galante consulted him for legal advice and asked him to provide the legal means to protect his property under the circumstances. Attorney Bull advised Galante that the urgent chamber application was appropriate for his concerns. Galante similarly testified that he asked his lawyer what to do and his lawyer advised him to procure a writ of arrest. Attorney Bull consulted with Galante to ensure that the facts were accurate in the affidavit. Galante reviewed his affidavit carefully before signing it. Galante vaguely knew Topaz had a child and did not know that Sable was in Zimbabwe. He did not read the writ of arrest prior to the time it was submitted to the court for execution, nor did Attorney Bull go over it with him.

At 10:00 a.m. on Saturday, March 2, 2002, an ex parte hearing was held on the urgent chamber application. The Zimbabwe court issued a provisional order for a writ of arrest. The order was addressed to Gerald, Shaina, and Topaz. If they wanted to oppose confirmation of the provisional order, they had to file a notice of opposition within ten days and serve a copy on Galantes attorney. If they did not file an opposing affidavit, the matter would be set for hearing without further notice and treated as an unopposed application for confirmation of the provisional order.

The terms of the provisional order required Gerald, Shaina, and Topaz to be arrested tam quam suspectus de fuga and kept in custody pending the courts determination of the action instituted by Galante for delivery of all of the items specified on the two-page property list. The provisional order directed the deputy sheriff to arrest Gerald, Shaina, and Topaz and detain them at the Harare Central Prison. The order instructed the officer in charge of the Harare Central Prison to receive Gerald, Shaina, and Topaz into his custody pursuant to the order and keep them until they were lawfully discharged or provided security of $250,000.

In conjunction with the provisional order, the Zimbabwe court issued a writ of arrest that commanded the Zimbabwe sheriff or his deputy sheriff to apprehend and arrest Gerald, Shaina, and Topaz, and unless and until they delivered all of the items on the list, the sheriff was required and directed to deliver them to the keeper of the Harare Central Prison with a copy of the writ, to be safely kept there until lawfully discharged or until a payment of $250,000 was made.

Attorney Bull gave the deputy sheriff copies of the provisional order and the writ of arrest. He explained that the deputy sheriff had to effect an arrest of the three respondents, or alternatively, obtain the payment of $250,000 referred to in the writ of arrest. Attorney Bull typed notes of his conversation with the deputy sheriff and placed them in Galantes file.^[2] He noted that [the deputy sheriff] stated that because two of the people requiring arrest were ladies[,] he would need to enlist the aid of the Police and the ladies were always taken in any event to Chikurubi prison not Harare Central Prison.

Topaz and Sable Are Arrested

On Saturday, March 2, 2002, Gerald and Shaina went to a friends house to play tennis. In the early afternoon, the intercom rang from the gate to the property. A man identified himself as a police officer and told Topaz that he had something to deliver. She asked him to leave it in the mailbox, since her parents werent home. The officer became irate and abusive. He told her to let him in or he would break down the gate. Topaz took Sable to the pool to swim. A staff member came to the pool and told Topaz that there was trouble at the gate. Topaz put a cover-up over her wet swimsuit and walked to the gate with Sable.

Topaz found two police officers had jumped over the gate. Several very large guard dogs were menacing the officers. The police had placed a man who worked for a neighbor in handcuffs and threatened to arrest him. They also threatened to arrest a gardener working on the property. The officers did not ask Topaz her name, did not mention Galantes property, and did not request that she provide security. They told her she was under arrest. Topaz asked to see identification. The police told her their guns were all the identification they needed. They grabbed her arm shouting, You are under arrest. Topaz asked the charges and they handed her the writ of arrest and Topaz saw her name on it. The officers said they didnt know the charges and were just doing their job.

Topaz pulled away from the officers and picked up Sable. The dogs acted to defend Topaz and Sable by coming between them and the police officers. The police officers drew their guns. Topaz turned her body away from the officers to protect Sable from the guns. Topaz said that she was going to walk up to the house to make a telephone call and change out of their wet swimsuits to proper clothes and the officers could accompany her to the house if they wanted to. The officers became very abusive and shouted that they were going to shoot the dogs. The gardener stood between the officers and Topaz, warding off the dogs with a garden hose and preventing the officers from grabbing Topaz as she retreated to the house.

Topaz walked to the house holding Sable in front of her. She walked into the house, and as the officers tried to push through the door behind her, she closed the door and it locked. The police shouted something. Topaz was afraid and called Shaina on the telephone to tell her that the police intended to take her into custody. Topaz said she didnt know what was going on, but the police were at the house with a writ of arrest that had her, Shaina, and Geralds names on it. She said the police were taking her to the Highlands Police Station for questioning and she needed help. Shaina and Gerald attempted to locate Attorney Brooks.

Topaz went upstairs in the house to change her clothes and Sables clothes. The police shouted and hammered on the front door. They accused Topaz of resisting arrest. Topaz put her head out the window to tell them she was nearly dressed and coming down. With their guns drawn, they shouted that they were going to blow down the front door. Topaz told the police that they could either blow down the front door or wait five more minutes, because her daughter had been so frightened by all the shouting and brandishing of weapons that she had urinated in her pants. Topaz changed Sable again and went downstairs.

Topaz opened the front door and the police were calmer. They explained that it was just a civil matter and wanted her to come to the station to answer some questions. The police instructed her to get into their car, but she refused and told them that she would drive Geralds car to the station instead. She told the police that there was no one at home with whom to leave Sable and the police told her that she had to bring Sable with her. An officer rode with them and sat in the back of Geralds car with his gun drawn.

Attorney Bull stated in his deposition that at some point during the afternoon, the deputy sheriff called him to express concern that Topaz had been the only one at home and she had a baby with her with whom she was not prepared to part. Attorney Bull told the deputy sheriff that he needed to deal with the matter in accordance with the procedures of his office. Galante spoke with Attorney Bull three times by telephone on the day of the arrest. Galante testified at trial that when he heard Topaz had been taken into custody, he instructed his lawyer to have her released.

Topaz brought her airline tickets to the police station showing her travel from the United States to prove that she had not been in the country at the time that Galante alleged she had taken his property. The police questioned Topaz at the station, but never mentioned Galantes property. She told them that she didnt think their questions were relevant and she was going to go home. They told her that she could not leave the police station and she was going to prison. Attorney Brooks arrived, but the police would not let them speak to each other. Topaz asked if Attorney Brooks could take Sable with him, but the police refused to allow it. Topaz was worried the police would take her airline tickets, so she gave them to Attorney Brooks as he walked out.

Shortly afterward, the police officers house ushered Topaz and Sable into a police car. Topaz asked where they were going and the officers told her that they were taking her to Chikurubi. The route from the station to the prison went past the Summerfield residence. Topaz asked to stop and leave Sable at the house. The police refused and told her that she had resisted arrest and they didnt want to go out of their way, and as a punishment, they were taking Sable to jail too.

They arrived at the prison at about 5:00 p.m. The warden asked the officers why they had brought Topaz to Chikirubi and one of them said it was because she had resisted arrest. Topaz and Sable were taken to a prison cell that held several other women.

In the early evening, Attorney Brooks called Attorney Bull and told him that Topaz had been incarcerated at Chikurubi pursuant to the writ of arrest. Attorney Brooks asked Attorney Bull to meet at the courthouse so that Attorney Brooks could bring an application for Topazs immediate release. Attorney Bull agreed. Attorney Bull stated in his deposition that he did nothing to get Topaz released from prison until he received the call from Attorney Brooks.

Attorney Brooks and an attorney friend of the Summerfields met with Attorneys Bull and de Bourbon outside the local courthouse. The Summerfield residence is a large property worth in excess $250,000 U.S. dollars, as is Geralds interest in two retail clothing businesses. Galante demanded that Gerald relinquish the deeds to his property and he would agree to release Topaz from prison. Gerald asked his attorneys to try to negotiate another solution.

The paintings were the most valuable of the missing items. At 10:00 p.m., the attorneys reached an agreement under which Shaina, Gerald, and Topaz would surrender their passports and Topazs return airline ticket, and in exchange, Galante would agree to Topazs release from prison. Attorneys Bull and Brooks executed a handwritten agreement providing that the passports would be handed to Attorney Bull pending the outcome of the matter, Attorney Brooks would ascertain the childrens address from Jacaranda and the precise whereabouts of the paintings, and if Jacaranda had the paintings in her possession in America, they would be handed forthwith to her attorney in San Francisco. Gerald and Shaina surrendered their passports that evening.

Attorneys Bull and Brooks immediately drove to the prison and informed the senior officer that Galante wanted Topaz released. In his deposition, Attorney Bull explained that they were advised by the prison officials that because Topaz had been incarcerated pursuant to a court order, a formal court order was required to release her. Early the following morning, Attorneys Brooks and Bull appeared before the duty judge. On Galantes behalf, Attorney Bull consented to an order of release.

Shaina, Gerald, and Attorney Brooks went to Chikurubi. Sable was released to them. Sable screamed for her mother to come with her as she was passed from a prison staff member to a prisoner and ultimately to Shaina. She was sunburned and had numerous insect bites. A few hours later, Topaz was released and Attorney Brooks took her to the Summerfield residence.

On Monday, March 4, 2002, Shaina took pictures of Topazs injuries. Topaz and Sable visited a doctor. The doctor prescribed tranquilizers, an antihistamine, and delousing agents. Topaz paid approximately $400 for the visit and the medications. Sable began waking up screaming at night. She wet her bed and had to wear diapers again. Topaz had nightmares, hives, and anxiety attacks. She was afraid that she might have contracted AIDS and requested several AIDS tests over the next few years.

Continuation of Civil Action After Topazs Release

Gerald returned approximately 15 paintings listed in the court orders. Topaz requested her passport from Galante in order to travel to South Africa and he agreed to return it.

Attorney Brooks told Attorney Bull that Jacaranda was ignoring his messages about the missing property. After a telephone call with Galante on March 5, 2002, Attorney Bull made note that: [Galante] did state that he felt that it was only right that he should be given the information in regard to the whereabouts of the missing items by close of the day tomorrow, 6th March. If it was not in hand by then, we would have to give consideration to the Summerfields posting security since they had not complied with the terms upon which we had agreed to authorize the release. Alternatively, they could give themselves up for admission to Chikurubi.^[3] Attorney Brooks called Attorney Bull to tell him that one painting had been overlooked and he would hold them all, as per Galantes request, in his firms vault.

On March 6, 2002, Attorney Bull spoke with Attorney Brooks. His notes of the conversation state, We did discuss the aspect of Topaz, and he said that he still felt that she should not have been dragged into it at all, and that it was not helpful for [Galante] to indicate that it was undesirable to escalate matters by reference to the scenario of Topaz suing him. I stated that to my mind we should not even be concerning ourselves with Topaz at this stage and rather simply focusing on ascertaining the whereabouts of the missing paintings etc. He agreed with that. On that same day, Attorney Bull placed a note in the file that he had called and reported to Galante. [Galantes] attitude was that if we did not receive the information by tomorrow then we should insist upon the Summerfields furnishing security.

On March 7, 2002, Attorney Brooks wrote to Attorney Bull that Jacaranda had sold six of the lithographs to a man whose last name she did not know for $6,000 in order to pay for her ticket to Cape Town to get legal counsel in 2000. She sold another piece of artwork in Berkeley to a man named Peter Fong or Wong for $3,000 to pay legal expenses, and she had recently traded one of the pieces of artwork for forensic services to track Galantes assets. Attorney Brooks added, [Galante] can no longer hold on to the bona fide belief that any of the property is still within the possession of [Gerald] and Shaina Summerfield. We therefore have been instructed to demand from you as we hereby do the immediate return of their passports which were placed in your possession on the evening of Saturday 2 March 2002 pursuant to the agreement arrived at between the parties.

Attorney Bull spoke with Galante. Attorney Bulls notes state, [Galantes] attitude, hardly surprisingly, was that he was simply not prepared to accept the ipse dixit of his wife, and that he needed more information in order to enable him to follow up that she was telling the truth. Furthermore, of course, he wished to follow up in order to try and obtain his property. He did not believe for one minute that [Gerald and Shaina] were unaware that their daughter was selling off assets and was firmly convinced that they were participating just as much as she was in the sales. He stated that he felt it was appropriate for us to now apply for security from [Gerald and Shaina] [in] the sum of US $250,000.00. Attorney Bulls advice to Galante was to wait for the letter from Attorney Brooks with details from Jacaranda about the disposition of the property. They discussed whether Jacaranda could be charged with a criminal offense for selling his property.

Attorney Bull added a note to the file stating his impression: I do not believe that we are in a position to insist upon [Gerald and Shaina] providing security. Effectively, the application was for an order to preclude them from escaping Zimbabwe with his property and selling it off outside the country, and since we now held their passports they were not in a position to leave the country. Effectively our holding of the passports was our security in regard to the whole purpose of the Order being obtained in the first place. Certainly we were not in a position to have them imprisoned for the same reason.

Attorney Bull also stated his opinion that Galante should wait for information from Jacaranda and leave it to Attorney Brooks to file an opposing affidavit in the writ of arrest action, or alternatively, to ask that the application be heard in court for it to be dismissed against his clients. His believed Galante was entitled to oppose the order being set aside, thereby enabling us to continue to retain the passports or, alternatively, have security substituted for the passports, on the basis that Jacaranda had previously assured Galante that she was properly looking after the property and keeping it safe. There was no suggestion whatsoever that any of it had been sold, and clearly she was endeavouring to keep that hidden.

At trial, Galante testified that he understood the underlying legal action continued after Topaz and Sable were released from prison. Attorney Bull explained in his deposition that Galante did not need to pursue the writ of arrest or take further action, because he held security in the form of Gerald and Shainas passports and they were still trying to locate the remaining property. Galante could have dismissed the proceeding by withdrawing his application, but although they had obtained the passports, they did not have the property, so it seemed inappropriate to withdraw the application. Attorney Bull also stated that there was no good reason to withdraw the application.

Attorney Bull stated that Galante did not withdraw the application as to Topaz because Topaz was out of custody, had her passport, and nothing further effectively would happen to her. Asked why Galante would not simply withdraw the application if nothing further could happen to Topaz, Attorney Bull responded, I dont think that it is something that would have occurred to him or, indeed, to me because I didnt think there was anything specifically to be gained by Topaz doing it. There was no specific advantage to her.

On March 18, 2002, Gerald, Shaina, and Topaz filed an opposing affidavit. On April 2, 2002, Attorney Brooks sent a letter to Attorney Bull with information from Jacaranda about the remaining property on the list.^[4] Attorney Brooks wrote, The aforegoing concludes our client[]s instructions with regard to this matter and from it you will see that our clients parents no longer have anything to do with the property which your client presently claims. [] [Y]ou cannot claim to have any right to hold on to our clients[] passports and the air ticket of Topaz Summerfield, which you hold pursuant to the agreement upon which Topaz Summerfield [was] released from prison on 3 March 2002. [] We ask for these now to be returned, failing which an urgent application will have to be made to have this matter [] set down on an urgent basis, and we shall again insist that your client bears the costs thereof on a higher scale.

On April 10, 2002, Attorney Bull responded, we do not agree that the disclosures made in the earlier paragraphs give rise to the conclusion that you espouse. He stated that Galante would be filing an answering affidavit.

The return date on Topaz and Sables airline tickets was April 29, 2002. On April 15, 2002, Attorney Brooks wrote a letter to Attorney Bull stating in pertinent part, We would strongly advise, both for your sake and that of your client, that your client seriously consider withdrawing these proceedings and tendering wasted costs as it would be with grave regret that we would have to take further measures along the lines already espoused in our clients opposing affidavit.

In May 2002, Topaz submitted a declaration in Jacarandas divorce proceeding in San Francisco describing her arrest in Zimbabwe. She declared that she had missed her return flight to the United States because Galantes attorney had not returned her airline tickets and she was essentially held hostage in Zimbabwe with her daughter.

Gerald, Shaina, and Topaz hired Attorney Hilary Fitzpatrick to represent them in the proceedings. Attorney Fitzpatrick wrote a letter to Attorney Brooks on May 23, 2002, requesting that Galante return Topazs expired airline tickets.

On May 27, 2002, Attorney Bull wrote a letter to Galante that enclosed copies of Attorney Fitzpatricks letter and Attorney Bulls response. He requested that Galante send him a memorandum addressing the allegations of the opposing affidavit so he could prepare Galantes answering affidavit. In the final paragraph of the letter, Attorney Bull asked, In the meantime, do you have any objection to the release to Topaz of her expired return air ticket, given that it does seem fairly clear that she was genuinely here for holiday purposes and appears not to have involved herself in any way with the issues between yourself and Jacaranda. A handwritten notation added, And that it is of no value in any event. Before the letter was produced to opposing counsel in this action, the final paragraph and the handwritten notation were redacted. Galante did not return the airline tickets to Topaz.

On July 29, 2002, Attorney Bull had a ten-minute telephone call with Attorney Eric Matinenga. Attorney Bull explained to Attorney Matinenga that the property would probably be dealt with in Galantes divorce proceeding, so that, effectively, insofar as the [tamquam suspectus de fuga] proceedings were concerned, we were simply looking at costs. [] I did emphasize, however, that I wanted the Answering Affidavit filed to reflect what the correct actual position was so that, at least for record purposes, there could be no suggestion that I had acted improperly or mala fide and that what was done was fair, reasonable and necessary in order to protect my clients interests. . . . I told him I would like to get on with filing the Answering Affidavit and he said that he would arrange to photocopy and forward to me a copy of [Galantes] letter to me which was in his instructions.

Galante filed an answering affidavit in the case on August 20, 2002. Attorney Bull acknowledged in his deposition that Galante could have dismissed the proceeding by withdrawing his application to have Gerald, Shaina, and Topaz arrested, rather than seeking to have the provisional order made final. Attorney Bull stated that it was clear from Galantes pleading that Galante was not seeking the arrest of Gerald, Shaina, and Topaz.^[5] However, Galante continued to hold the passports and sought to prevail in the action, in which case he would have been entitled to recover his legal costs from the opposing parties.

Attorney Bull spoke with Attorney de Bourbon on October 8, 2002, about the outstanding hearing in the tamquam suspectus de fuga proceeding. [Attorney de Bourbon] stated that as far as he was concerned we should not proceed further with this matter. [] He felt that we had made our point loud and clear and that to pursue it now would in effect be spiteful. [] He said I was quite free to mention that to . . . Galante when I spoke to him. [] He said it would be far preferable to have it settled. [] He agreed with me that a settlement on the basis of us handing back the passports and the tickets and each party bearing its own costs was sound.

Attorney Bull spoke with Galante on October 9, 2002, about the merit of a settlement. He accepted my advice that it would be preferable to have the matter settled in view of the fact that there was a risk that we would go down on the question of legal costs.

Attorney Bull spoke to Attorney Matinenga to authorize him to offer the settlement proposal to Gerald, Shaina, and Topaz. Attorney Bull told him that if Gerald, Shaina, and Topaz did not accept the proposal, then I saw no alternative other than to arguing the matter. [] I told him that I felt he was persuasive, . . . and that the Judge before whom the matter was placed might very well take an attitude that was not so much concerned with procedure but rather with merit, and that it appeared fairly clear, to my mind, and a proper consideration of our Answering Affidavit, that Galante was acting more than reasonably in assuming that his property would be made away with. Gerald, Shaina, and Topaz did not accept the settlement proposal.

On December 9, 2002, Shaina filed a stolen property report with the police stating that her purse had been stolen. She listed Topazs expired airline tickets on the list of stolen property. Topaz filed a lost ticket application with the airline, provided a copy of the police report, and paid $400 for replacement airline tickets.

On December 20, 2002, the Zimbabwe court issued a final order in the writ of arrest case. The court recited the facts of the case and found as follows in pertinent part: In his papers, [Galante] seeks the arrest of [Topaz] ad confirmandum jurisdiction but the draft order seeks arrest tamquam suspectus de fuga. In my view, as far as [Topaz] is concerned, it is not necessary to determine which of the two could have been the correct procedure. [Galante] failed, in his papers, to show that [Topaz] had anything to do with the removal of property from Macheka Farm. All he could say was [Topaz] travelled to Zimbabwe, for reasons not clear to him but which he believes relate to the divorce between him and his wife. He did not establish a basis for such belief. Her only crime, as was submitted by [her] counsel, was to arrive in the country for her annual holiday on the same day that her sister departed for the USA. I therefore find no basis to confirm the order in respect of [Topaz].^[6] The Zimbabwe court concluded that subsequent acts concerning the property had rendered the order sought as to Gerald and Shaina moot.

The Zimbabwe court noted, [Gerald, Shaina, and Topaz] are praying for costs de bonis propriis against Attorney Bull. They did not actively pursue the argument in their heads of argument and the issue was half-heartedly argued on the day of the hearing. The submissions by [counsel for Gerald, Shaina, and Topaz] almost amounted to a concession that the order was not appropriate. However, my view is that [Galante] should pay [Gerald, Shaina, and Topazs] costs. As I have already stated elsewhere in this judgment, [Galante] had no basis whatsoever for dragging [Topaz] to court. As regards to [Gerald and Shaina, Galante] failed to establish a basis for his belief that they wanted to leave the country with his property. The Zimbabwe court discharged the provisional order issued on March 2, 2002, ordered Galante to release the passports forthwith, and ordered Galante to pay costs of suit.

Topaz and Sable returned to the United States on December 22, 2002.

On January 8, 2003, Attorney Bull wrote the following to Galante: I write to advise you that the [tamquam suspectus de fuga] application has, predictably, been dismissed with costs. [] The Court ordered the immediate return of the passports. [] Clearly there is no basis for an appeal as the circumstances pertaining at the time have been overtaken by events, particularly the judgment [in the Zimbabwe divorce proceeding]. . . . Please confirm that I am to deliver the passports to [Attorney] Fitzpatrick on behalf of [Gerald and Shaina]. Attorney Bull returned Shaina and Geralds passports.

Topaz paid Attorney Brooks $1,000 in legal fees. Her parents paid the remainder of her legal fees pursuant to an agreement that Topaz would repay them when she could. Topaz did not submit a bill of costs for payment by Galante. Topaz paid additional medical expenses when they returned to the United States, including expenses for therapy and dermatological services for a scar on Sables face.

The Instant Case

On February 27, 2003, Topaz and Sable filed the complaint in the instant case against Galante for false imprisonment, malicious prosecution, intentional infliction of emotional distress, and defamation. Galante filed a motion to quash service of process for lack of jurisdiction and to stay or dismiss the action for inconvenient forum, which was denied by the trial court. Galante filed a writ petition that was denied by this court. On January 2, 2004, Galante filed a general denial asserting affirmative defenses including lack of jurisdiction, contributory negligence, and failure to state a cause of action. Galante did not assert advice of counsel as a defense.

On November 11, 2004, Topaz and Sables counsel wrote a letter to Galantes counsel in the instant matter, Attorney Randolph. Topaz and Sable requested a stipulation allowing depositions of Galante and Attorney Bull to be taken telephonically or by video conferencing at a mutually convenient date. Topaz and Sable stated that they intended to schedule four additional depositions in South Africa and Zimbabwe. In the event that there was no stipulation, Topaz and Sable would set dates convenient to their counsels schedule and take the depositions before the discovery cutoff date of December 13, 2004.

On November 16, 2004, Attorney Randolph responded that he would not agree to the proposed stipulation, because it was not in Galantes best interests. In addition, he stated his understanding that depositions taken unilaterally in Africa would not be admissible without proper notice and issuance of an oath to the witness by an authorized government official. Attorney Randolph agreed to honor a notice of telephonic deposition as to Galante, but noted that it required ten days notice. Attorney Randolph added, We will not provide [Attorney] Bull, a non-party, for deposition.

On November 23, 2004, Galante provided an expert witness list that listed Attorney Bull as a nonretained expert witness. On December 12, 2004, Galante submitted a supplemental expert witness designation adding Attorney de Bourbon to his expert witness list.

On January 28, 2005, Topaz and Sable filed a motion to compel production of Attorney de Bourbons records and files or, in the alternative, to strike him as an expert witness. On February 22, 2005, the trial court granted the motion to compel in part and instructed Galante to create a privilege log identifying documents subject to the attorney-client privilege. The parties attorneys were instructed to discuss objections and set forth unresolved issues with particularity.

A status conference on discovery issues was set for May 4, 2005, and the trial date was continued to August 2005. On April 22, 2005, Galante filed a motion for summary judgment. As to the cause of action for malicious prosecution, Galante argued that he relied on the advice of counsel in filing the initial application for a writ of arrest.

Galante filed a privilege log listing documents generated by Attorney de Bourbon, such as drafts of pleadings filed in Galantes divorce proceeding in Zimbabwe. Galante asserted that all of Attorney de Bourbons responsive documents were on the privilege log and Attorney de Bourbon had no nonprivileged documents. On May 2, 2005, Galante filed a status conference report that withdrew his designation of Attorney de Bourbon as an expert witness.

On May 3, 2005, Topaz and Sable filed a response stating that Galante had waived the attorney-client privilege as to communications among himself and Attorneys de Bourbon and Bull by raising advice of counsel as a defense to the cause of action for malicious prosecution. Topaz and Sable requested that the trial court order Galante to produce evidence of communications related to the legal proceedings in Zimbabwe, including communications to which Attorney de Bourbon was a party.

The status conference on discovery issues was held on May 4, 2005. On the issue of the production of Attorney de Bourbons documents, Attorney Randolph explained that he had agreed to provide copies of nonprivileged documents, such as pleadings filed in the divorce proceeding, which would be a matter of public record. However, it turned out that Attorney de Bourbon did not have copies of the pleadings that were filed. The trial court noted that Galante would be precluded from introducing any of the pleadings at trial for any purpose. Attorney Randolph agreed to provide copies of any pleadings in his possession that were filed in the divorce proceeding. Topaz and Sables counsel stated that Attorneys de Bourbon and Bull had been cocounsel in Zimbabwe and if Galante relied on the advice of either attorney, the privilege had been waived for both. Attorney Randolph told the trial court that Attorney de Bourbon was not involved in the drafting and presentation of the civil arrest warrant.

Topaz and Sables counsel explained their understanding that Attorney de Bourbons pleadings and correspondence had been transferred to Galantes counsel in San Francisco for use in connection with the divorce proceeding Jacaranda had filed. Topaz and Sable had not issued a subpoena to the San Francisco counsel, because the documents were within the scope of discovery until Galante withdrew his designation of Attorney de Bourbon as an expert. The trial court ordered Galante to provide any pleadings that Attorney de Bourbon had in his possession and any other nonprivileged documents as required by the courts previous order. The court advised Topaz and Sable to seek discovery of the file in San Francisco pursuant to a subpoena.

On May 9, 2005, Topaz and Sable served a deposition subpoena for production of business records on the custodian of records of Randolph & Associates. Topaz and Sable requested: all documentation in the possession or control of Randolph & Associates as to litigation between Galante and Jacaranda from 1997 to the present; all documentation generated by Attorney Bull or his firm concerning Galante and Gerald, Shaina, or Topaz from 1997 to the present; all documentation generated by Attorney Bull at any time from 1997 to the present as a result of tanquam suspectus de fuga proceedings between Galante and any member of the Summerfield family; all documentation received from or otherwise created by Attorney de Bourbon at any time from 1997 to the present regarding the litigation between Galante and Jacaranda; and all documentation constituting evidence that Galante relied upon the advice of his counsel in obtaining the writ of arrest.

On May 26, 2005, Galante objected to the deposition subpoena on the ground that the requests for production of documents were beyond the scope of discovery ordered at the May 4, 2005 hearing, namely, nonprivileged pleadings filed in the Zimbabwe divorce proceeding. In addition, Galante objected to the extent that the requests concerned attorney-client communications and work product.

A hearing was held on July 14, 2005, on the motion for summary judgment. The trial court found that Galante had not met his burden on summary judgment and denied the motion.

On July 19, 2005, Topaz and Sable filed a motion in limine to preclude Galante from relying on advice of counsel as a defense. Topaz and Sable argued that Galante did not raise the defense until his motion for summary judgment and his opposition to a motion for discovery of his financial condition. By raising the defense, he waived his right to prevent discovery into communications he exchanged with his counsel concerning the arrest proceeding. Galante had objected to the subpoena for production of documents on the basis of the attorney-client privilege and provided no documents. Topaz and Sable argued that Galante should be estopped from claiming that he relied on the advice of his counsel, because he had denied them the opportunity to conduct meaningful discovery on the issue.

A hearing was held on July 28, 2005, and the trial date was continued to September 12, 2005. On August 10, 2005, Galante filed a motion in limine to exclude testimony as to the contents of court documents from Zimbabwe on the grounds that it was hearsay and not properly subject to judicial notice.

On August 18, 2005, the parties entered into an agreement that included the following stipulations: certain documents were correct copies of documents in the record of the underlying proceeding in the Zimbabwe court; a sufficient foundation had been established for the admissibility of the writ of arrest and the December 20, 2002 order, although the parties reserved their right to object to admissibility on all other grounds; Attorney Bulls testimony as an expert witness would be limited to certain matters; and Topaz and Sable would withdraw the motion in limine seeking to preclude Galantes advice of counsel defense.

At a hearing on August 24, 2005, the following discussion took place concerning the stipulation: [Counsel for Topaz and Sable]: I thought the agreement was that we would withdraw the motion, [Attorney] Bull and his file would be produced [for deposition on September 7, 2005], his file being whatever documents he generated or received during the course of his representation of Mr. Galante in the arrest proceeding. [] [Attorney Randolph:] All right. I agree. . . . What he just said, I will agree that is my understanding.

At a hearing on August 29, 2005, Attorney Randolph explained arrangements he had made for Attorney Bulls deposition. Attorney Bull would travel to South Africa and they could video conference and videotape it at the court. He stated, [I]f it works, then Im going to have him testify live at the trial. So this is a trial run. And if it doesnt work, Ill still have the deposition with the videotape. So thats the plan.

The trial court issued a tentative ruling on Galantes motion in limine to exclude the Zimbabwe court documents as hearsay. The Zimbabwe judgment could be recognized as conclusive in the instant case based on principles of comity. It was not clear whether it was necessary for the court to resort to judicial notice, because the parties had stipulated to the foundation for the documents. Judicial notice could be taken of the Zimbabwe courts findings, but could not encompass that the facts found by the Zimbabwe court were the true facts. The parties stipulation as to authenticity and the courts ability to take judicial notice permitted application of the official records exception to the hearsay rule to allow introduction of the document in its entirety. Introduction of the document would be permitted with a limiting instruction. After hearing argument, the trial court ruled that the jury would be instructed that the court had taken judicial notice of the findings in the final order in the underlying case and they would be provided with a statement of those findings.

On September 12, 2005, after Attorney Bulls deposition, counsel for Topaz and Sable objected that Attorney Bulls files had not been produced as required by the parties agreement. Attorney Randolph stated he had believed in good faith that Attorney Bulls entire file had been produced with respect to the writ of arrest, but Attorney Bull had stated in deposition there might be other documents. Topaz and Sables counsel noted that there were no billing records, file memoranda, correspondence, or other documents that they would have expected to have been produced. Attorney Randolphs explanation was that Attorney Bull learned on a Thursday night that the writ of arrest would go forward over the weekend and there was no time for correspondence. The court asked whether Attorney Bull would be testifying by way of deposition. Attorney Randolph answered, The plan right now, your Honor, is to have him testify live and in color . . . . But we do have eight hours of videotaped deposition in case that doesnt work. The trial court told counsel for Topaz and Sable to submit a detailed request for relief on the issue of document production.

On September 15, 2005, Topaz and Sable filed a motion for an order precluding Galante from offering reliance on advice of counsel as a defense. They provided excerpts from Attorney Bulls deposition in which Attorney Bull stated that he had not produced his entire file. On September 16, 2005, Galante filed an opposition to the motion, promised to provide Topaz and Sable with any additional documents that were received and offered to allow their counsel to redepose Attorney Bull in light of the misunderstanding.

At a hearing on September 19, 2005, Attorney Randolph provided additional documents and represented that Attorney Bull had produced all of the responsive documents. Topaz and Sables counsel objected to the trial court that Galante construed the writ of arrest case as narrowly as possible, whereas they believed anything relating to the alleged diversion of property, the incarceration, the holding of the passports, the efforts to confirm the writ of arrest, and anything that had any effect on the Summerfield family relating to these issues should have been produced. In response, Attorney Randolph argued that Topaz and Sable should have noticed Attorney Bulls deposition and presented a written request for production of documents for other than the writ of arrest case. The court asked, Is [Attorney] Bull going to testify in person or via satellite? Attorney Randolph responded, Your Honor, to tell you the truth, I dont know yet because it was reallywhen we got the bills, I was staggered. To tell you the truth, it has to doI originally anticipated he would testify live. Then, when I got the bill from the deposition, I wasnt so sure about that.

The court ruled as follows: [B]ased upon my reading of the stipulation and what went forward in court, there was an agreement that should be met that you will turn over everything in [Attorney] Bulls files relating to the arrest proceeding. Youve just given him some documents. I dont know if there are some that arent there. But that agreement must be fulfilled. And I define arrest proceeding as the proceeding involving the plaintiff in this case and involving them seeking the writ and her getting incarcerated. Thats whats relevant in this case. . . . [The advice of counsel defense] doesnt open the door to everything in the attorney-client relationship.

The trial court asked counsel for Topaz and Sable whether Attorney Bull needed to be redeposed based on the documents that had been produced following his deposition. Their counsel responded, Just a couple minutes ago is the first I heard that he might not testify at trial. There was a representation made to us that he would be a trial witness. And we conducted our deposition based on that representation. And if hes not at the trial by some means, we are going to seek a motion to exclude his testimony and to strike the defense. Thats not fair. The trial court confirmed with Attorney Randolph that he had not decided whether Attorney Bull would testify at trial.

Attorney Randolph said he mentioned to Topaz and Sables counsel the previous week that he didnt know whether he was going to rely on Attorney Bulls deposition at trial or ask him to go to South Africa. In addition, Attorney Randolph disagreed that he had an obligation to ask Attorney Bull to go to South Africa simply because video conferencing technology was available. He further stated, Im not sure when Im going to make that decision, but I stand by my agreement. As I said before, Your Honor, if they want to take his deposition, I will coordinate with them to make that happen because one thing