Fulton v. Matthews

Filed 6/6/07 Fulton v. Matthews CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Corey S. Cramin, Judge. Affirmed.

Law Offices of Wendy L. Matthews and Wendy L. Matthews, in pro. per.; Newell, Campbell & Roche and Meredith G. Karasch for Defendant and Appellant.

Martin & McCormick, John D. Martin and Kathy J. McCormick for Plaintiff and Respondent.

Wendy L. Matthews appeals from an order denying her special motion to strike pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP motion)[1] Sara Fultons malicious prosecution action. Matthews argues the trial court applied the incorrect standard in ruling on her motion, and, alternatively, Fulton did not satisfy her burden under the correct standard. We need not address whether the court applied the incorrect standard because our review is de novo. We conclude Fulton satisfied her burden and affirm the order. We deny Matthewss request for attorney fees below and on appeal.

FACTS[2]

In March 2003, Doctor James E. Fulton (James) performed liposuction on Matthews. In June 2004, Matthews filed a complaint against James, James E. Fulton MD, Inc., JEF Medical Group, Doctor John C. Caruso, John C. Caruso MD, Inc., and Jamess wife, Sara Fulton (Sara), for medical malpractice, battery, and fraud based on injuries she sustained during the liposuction.[3]

The cause of action for medical malpractice alleged Sara was a health care professional who agreed to provide medical care, treatment, advice, and services to Matthews. It alleged Sara negligently, carelessly[,] and unlawfully failed to possess and to exercise that degree of knowledge and skill ordinarily possessed and exercised by other healthcare practitioners . . . . Finally, it alleged Sara negligent[ly] and below the applicable standards of care in the community[] performed liposuction. The cause of action for battery stated Matthews had to obtain medical treatment for injuries sustained by Saras unpermitted harmful contact with her person. Finally, the cause of action for fraud alleged Sara made false and untrue statements concerning Jamess medical abilities, fitness to practice medicine, experience, and insurance.

Sara propounded discovery to Matthews, including a request for admissions and form interrogatories. After receiving Matthewss responses, Sara filed a motion for summary judgment in July 2005, which was set for hearing in September 2005. The same day Saras summary judgment motion was served on Matthews, Matthews served Sara with supplemental and amended responses to Saras request for admissions.

Sara set Matthewss deposition for August 10, 2005, but she was unable to attend because of two family emergencies. Efforts to reschedule her deposition over the next couple months were unsuccessful. In September 2005, Matthews filed and served her opposition to Saras motion for summary judgment, including an addendum to her separate statement of undisputed material facts. The next month, Saras counsel advised Matthewss counsel he would seek the trial courts assistance in compelling Matthewss deposition unless counsel proposed some dates.

On October 21, 2005, Matthews requested Sara be dismissed, and the court clerk entered the dismissal the same day.

The following month, Sara filed a complaint against Matthews for malicious prosecution. Matthews filed an anti-SLAPP motion supported by her own declaration.

In her declaration, Matthews stated the following: James performed liposuction surgery on her that resulted in disfigurement, scarring, and permanent damage requiring at least four corrective surgeries. She filed a complaint against James and Sara. She had probable cause to bring Sara . . . into [the] action because she appeared to be intimately involved in the clinic business and operations. She saw and heard Sara at the clinic, and clinic employees confirmed Sara played a key role there. In August 2003, Sara telephoned her and told her James injured his back and would not be treating patients any longer. Sara advised her to see another doctor. Matthews later learned James surrendered his medical license because of a disciplinary proceeding. She reasonably believed that Sara . . . was either a care provider in the office or venturer with [James], or otherwise a significant agent or employee. In her discovery responses, Sara denied any professional relationship with James, but stated she was president of Vivant, Inc., a company that produces skin care products that were formulated by James and sold at the clinic. She denied being present at the clinic except for social visits. Matthews declared that because Saras discovery responses were inadequate and James refused to answer discovery, she decided to dismiss Sara.

Sara opposed the anti-SLAPP motion supported by her, her sons, and her attorneys, John Martin, declarations.[4] She also filed a request for judicial notice and evidentiary objects to Matthewss declaration.

Matthews replied supported by a transcript of her deposition. She also filed a supplement to her anti-SLAPP motion. The trial court denied Matthewss anti-SLAPP motion.

DISCUSSION

Anti-SLAPP Law

Section 425.16, subdivision (b)(1), states, 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. Section 425.16, subdivision (a), is to be construed broadly.

Consideration of a section 425.16 motion to strike anticipates a two-step analysis. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendants burden is to demonstrate that the act or acts of which the plaintiff complains were taken in furtherance of the [defendant]s right of petition or free speech under the United States or California Constitution in connection with a public issue, as defined in the statute. ( 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Nothing outside of this two-step process is relevant.(Weinberg v. Feisel (2003)

110 Cal.App.4th 1122, 1130.)

In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant ( 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendants evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim. [Citation.] [Citations.] (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 675 (Peregrine).) We review a trial courts ruling on a special motion to strike de novo. (Id. at pp. 670, 675.)

Protected Activity

The statutory phrase cause of action . . . arising from means simply that the defendants act underlying the plaintiffs cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] . . . [T]he critical point is whether the plaintiffs cause of action itself was based on an act in furtherance of the defendants right of petition or free speech. [Citations.] A defendant meets this burden by demonstrating that the act underlying the plaintiffs cause fits one of the categories spelled out in section 425.16, subdivision (e) . . . . [Citations.] (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)

Section 425.16, subdivision (e), states: As used in this section, act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Here, the parties do not dispute Saras malicious prosecution action was subject to Matthewss anti-SLAPP motion. A malicious prosecution action is susceptible to an anti-SLAPP motion. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741.) [T]he filing of a complaint is an exercise of the constitutional right of petition and falls under section 425.16. [Citation.] Thus, malicious prosecution actions are subject to anti-SLAPP scrutiny because [b]y definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit. [Citation.] [Citation.] (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537.) We must now determine whether Sara satisfied her burden of demonstrating a probability of prevailing on her malicious prosecution action.

Probability of Prevailing

In order to establish a probability of prevailing for purposes of section 425.16, subdivision (b)(1), the plaintiff need only have stated and substantiated a legally sufficient claim. [Citation.] Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. [Citation.] [Citation.] The plaintiffs burden [is] what the Supreme Court has referred to as the minimal merit prong of section 425.16, subdivision (b)(1) [citation] . . . . [Citation.] A plaintiff is not required to prove the specified claim to the trial court; rather, so as to not deprive the plaintiff of a jury trial, the appropriate inquiry is whether the plaintiff has stated and substantiated a legally sufficient claim. [Citation.] [Citation.] (Peregrine, supra, 133 Cal.App.4th at p. 675, fn. omitted.)

Generally, a defendant may defeat a cause of action by showing the plaintiff cannot establish an element of its cause of action or by showing there is a complete defense to the cause of action, and there is nothing in the language of section 425.16 or the case law construing it that suggests one of these avenues is closed to defendants seeking protection from a SLAPP suit. [Citation.] [] However, the defendant also generally bears the burden of proving its affirmative defenses. [Citations.] Thus, although section 425.16 places on the plaintiff the burden of substantiating its claims, a defendant that advances an affirmative defense to such claims properly bears

the burden of proof on the defense. [Citation.] (Peregrine, supra, 133 Cal.App.4th at

p. 676, fn. omitted.)

Preliminarily, Matthews spends a fair amount of time arguing the trial court applied the incorrect standard and placed the burden on her as to the second element of the two-part test. Because our review is de novo, we need not address this claim. We limit our inquiry to whether Sara stated and substantiated a legally sufficient claim for malicious prosecution. We conclude she has.

To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiffs, favor [citations]; (2) was brought [or maintained] without probable cause [citations]; and (3) was initiated [or maintained] with malice [citations]. [Citation.]. [Citation.] (Zamos v. Stroud (2004) 32 Cal.4th 958, 965-966, 970.) We will address each of these elements in turn.

Termination in Saras Favor

The key is whether the termination reflects on the underlying defendants innocence. [Citations.] If the resolution of the underlying litigation leaves some doubt as to the defendants innocence or liability[, it] is not a favorable termination, and bars that party from bringing a malicious prosecution action against the underlying plaintiff. ([Citation], italics in original.) A termination [by dismissal] is favorable when it reflects the opinion of someone, either the trial court or the prosecuting party, that the action lacked merit or if pursued would result in a decision in favor of the defendant. [Citation.] [] . . . The focus is not on the malicious prosecution plaintiffs opinion of his innocence, but on the opinion of the dismissing party. ([Citation], italics in original.) The test is whether or not the termination tends to indicate the innocence of the defendant or simply involves technical, procedural or other reasons that are not inconsistent with the defendants guilt. [Citations.]

A voluntary dismissal may be an implicit concession that the dismissing party cannot maintain the action and may constitute a decision on the merits. [Citations.] It is not enough, however, merely to show that the proceeding was dismissed. [Citation.] The reasons for the dismissal of the action must be examined to determine whether the termination reflected on the merits. [Citations.] A voluntary dismissal on technical grounds, such as lack of jurisdiction, laches, the statute of limitations or prematurity, does not constitute a favorable termination because it does not reflect on the substantive merits of the underlying claim. [Citations.] (Robbins v. Blecher (1997)

52 Cal.App.4th 886, 893-894.)

Matthews argues Sara did not satisfy her burden of demonstrating the underlying litigation was terminated in her favor. Specifically, she claims her voluntary dismissal of Sara was not because Sara was innocent, but was pursuant to her statutory right based on emotional, practical, and financial considerationsher mother and brother passed away within days of each other and she made a strategic decision to use her limited resources to pursue her complaint against James. We are not persuaded. After reviewing the entire record, we conclude Sara satisfied her burden as to this element.

Although not dispositive, Matthews, in her briefs, states, [T]he dismissal was not reflective of the merits of the case but it did reflect Matthewss belief that the evidence she had acquired to that point didnt support the allegations, even though she could have spent more time and money on pursuing further discovery and witnesses and taken it to trial . . . . In other words, Matthews dismissed Sara because she had no evidence to support her causes of action for medical malpractice, battery, and fraud against Sara. Her tacit concession is supported by her discovery responses and the declarations submitted with Saras opposition to Matthewss anti-SLAPP motion.

In her discovery responses, Matthews stated she filed her complaint based upon her statutory right to do so. When asked during her deposition whether she had any evidence Sara was involved in Jamess medical practice, she responded, This unverified complaint? Counsel asked whether the fact it was unverified reflected her state of mind, she responded, Well, I didnt sign that under penalty of perjury. She also admitted she never investigated whether Sara provided medical treatment to her or worked for James or his medical practice. Finally, Matthews conceded she spoke with Martin who told her James did not have medical malpractice insurance, he was judgment proof, and his residence was in Saras name.

In her declaration, Sara stated she was not a doctor and had never been employed by James or his medical practice. She was not a shareholder or officer of his practice. She was not a nurse or technician. She had never treated Matthews, and to the best of her knowledge, had never met or spoke with her. She made rare social visits to his practice to visit James or their son, but at the time in question, she was in Florida operating her business. She denied ever calling patients concerning Jamess medical practice, and there were two other doctors there that could have treated her. Finally, she denied managing Jamess medical practice.

James E. Fulton, III, James and Saras son, declared that at the time in question, he was in charge of the entire medical practice. He stated Sara had absolutely nothing to do with the management of the practice. He said Sara made rare social visits to see him or James, but that at the time in question, she was in Florida. He explained neither Sara nor anyone made calls to patients recommending they find other doctors because there were two other doctors there, and they were trying to sell the practice and would not have advised patients to see another physician.

Finally, attorney John Martin, Saras attorney, declared that before Matthews filed her complaint, he spoke with Matthews and advised her James had surrendered his medical license, and he had no errors and omissions insurance or assets. He told Matthews, and her co-counsel, the residence he resided in belonged to Sara.

Matthewss discovery responses and the declarations submitted with Saras opposition to Matthewss anti-SLAPP motion provided sufficient prima facie facts Matthewss voluntary dismissal was a termination of the action in Saras favor. Matthews conceded that before she filed the complaint, she had no evidence Sara treated her or worked for James or his medical group; she filed her complaint based on her statutory right to do so. Additionally, she knew recovery for her injuries against James was going to be difficult, if not impossible, because he was judgment proof. And, Sara and her son both declared Sara had nothing to do with Jamess medical practice. Finally, Matthews dismissed Sara less than two weeks after being threatened with the filing of a motion to compel to take taker her deposition.

Relying on this courts decision Oprian v. Goldrich, Kest & Associates (1990) 220 Cal.App.3d 337, Matthews claims she should not be penalized for voluntarily dismissing Sara to avoid further fees and costs. As we explain above, the evidence established the dismissal was not just an effort to avoid further fees and costs, but because Matthews had no evidence Sara was in anyway connected with Jamess medical practice or responsible for her injuries.

Probable Cause

In analyzing the issue of probable cause in a malicious prosecution context, the trial court must consider both the factual circumstances established by the evidence and the legal theory upon which relief is sought. A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him. In making its determination whether the prior action was legally tenable, the trial court must construe the allegations of the underlying complaint liberally in a light most favorable to the malicious prosecution defendant. [Citation.] In all cases, probable cause is to be determined by an objective standard. If any reasonable attorney would have thought the claim made in the prior action tenable, then it is not lacking in probable cause and the defendant is entitled to judgment in the malicious prosecution action regardless of what the defendants subjective belief or intent may have been. [Citations.] (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 164-165, fn. omitted.)

Relying on the fact she (a trust attorney), and a medical malpractice attorney filed the complaint, Matthews contends she had probable cause to name Sara in the complaint. We disagree.

Preliminarily, we note Matthews criticizes Sara for not including declarations from former employees, other than her son, to support her claim she was in no manner associated with Jamess medical practice. We could say the same about Matthews. Matthews repeatedly stated former employees told her Sara ran the practice, that Sara instructed them not to release Matthewss medical records until she examined them, and Sara had told employees not to discuss Jamess difficulties. Although we recognize these were Jamess former employees, Matthews did not produce any declarations other than her own.

As we explain above more fully, before filing the complaint, Matthews knew James did not have errors and omissions insurance or any assets, and his residence was in Saras name. In other words, before filing her complaint, Matthews knew James was judgment proof. She did not investigate whether Sara provided medical treatment to her or worked for James or his medical practice. Simply put, she did not have any evidence Sara treated her or worked for James or his medical group. Based on the fact she knew recovery for her injuries from James was unlikely, she named Sara in the complaint without any evidence Sara treated her.

The only piece of evidence Matthews has to support her contention is her own statement in her declaration that Sara called her to inform her James injured his back, he would not be seeing patients any longer, and she should find another doctor. Even if true, which Sara refuted through declarations, this allegation by itself does not establish probable cause for the filing of a civil action against Sara for medical malpractice, battery, and fraud. And, it is of no consequence Matthews might have seen Sara at the clinic. Sara could have been there for any number of reasons, none of which establish she treated patients. Therefore, we conclude Matthews sought recovery upon a legal theory which was untenable under the facts known to her at the time of filing the complaint.

Malice

Malice may also be inferred from the facts establishing lack of probable cause. [Citation.] [] To infer malice from the evidence supporting lack of probable cause, the parties prefiling behavior must have been clearly unreasonable. . . . [T]his result [inference of malice] is not automatic. To complete proof of malicious prosecution, the presence of malice must be found as a matter of fact. As a consequence, it always remains a possibility that unreasonable behavior in terms of the nature of the prefiling behavior of the attorney, even though it would support a conclusion that there was no probable cause to file, would nevertheless not support an inference of malice. [] Thus, in a given case, unreasonable behavior which could lead to a determination that there was a lack of probable cause to file, might not provide a sufficient basis to infer malice, and without malice no case of malicious prosecution can be proved. [Citation.] (Grindle v. Lorbeer (1987) 196 Cal.App.3d 1461, 1466.)

Matthews concedes malice may be inferred from lack of probable cause, but argues the inference is not automatic where there was mistake or negligence. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292; Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 192-193.) Matthews claims malice may not be inferred here because she did not believe Martin when he told her James was judgment proof, and mistake or negligence is insufficient to demonstrate malice. As we explain anon, we conclude malice may be inferred from the lack of probable cause to prosecute the complaint.

As we explain above, Matthews did not investigate whether Sara provided medical treatment to her or worked for James or his medical practice. And, Matthews conceded she spoke with Martin who told her James did not have medical malpractice insurance, he was judgment proof, and his residence was in Saras name. Matthews must have known it was going to be difficult to recover for her injuries against James. Although she did not have any evidence against Sara, she was informed Jamess residence was in Saras name and named Sara in the complaint. From this lack of evidence against Sara, and because recovery against James was unlikely, we may infer the element of malice. Therefore, the trial court properly denied Matthewss anti-SLAPP motion.

DISPOSITION

The order is affirmed. Accordingly, Appellants requests for attorney fees below and on appeal are denied. Respondent is awarded her costs on appeal.

OLEARY, ACTING P. J.

WE CONCUR:

ARONSON, J.

IKOLA, J.

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[1] Code of Civil Procedure section 425.16 authorizes a special motion to strike a Strategic Lawsuit Against Public Participation (SLAPP) action. Section 425.16 is referred to as the anti-SLAPP statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 85, fn. 1 (Navellier).) All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.

[2] Relying on Evidence Code section 452, subdivisions (c), (d)(1) and (2), (h), and 453, Matthews requests we take judicial notice of the entire pleading and court file in this case, including but not limited to the following contained in [her] [a]ppendix . . . : Medical Board of California, Department of Consumer Affairs Report [(the Report)]. The Report states James surrendered his California medical license August 13, 2003, and details action other states medical boards have taken against him.

Fulton complains Matthews did not comply with California Rules of Court, rule 8.124 and submit those items she should reasonably assume Fulton will rely on, including exhibits filed in opposition to her anti-SLAPP motion, and evidentiary objections to her motion. Fulton filed an appendix which included the documents she complains Matthews did not submit.

Because it is Matthewss duty to provide an adequate record demonstrating error (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132), and the fact the Report is unnecessary for resolution of this appeal, we deny Matthewss request to take judicial notice of the entire superior court file and the Report.

[3] Caruso settled.

[4] Martins declaration included exhibits, which Matthews did not include in her appellants appendix, but which Sara included in her respondents appendix.