MARIJANOVIC v. DUFFY
Filed 3/27/06
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
| ANTE MARIJANOVIC et al., Plaintiffs and Respondents, v. GRAY, YORK & DUFFY, Defendants and Appellants. ___________________________________ ANTE MARIJANOVIC et al., Plaintiffs and Respondents, v. R. C. SEHNERT, INC., et al., Defendants and Appellants. | B179868 c/w B182058 (Los Angeles County Super. Ct. No. BC311391 |
APPEAL from orders of the Superior Court of Los Angeles County, Gregory W. Alarcon, Judge. Reversed.
Flahavan Law Offices and William F. Flahavan on behalf of Defendant and Appellant Gray, Jork & Duffy; Maxie Rheinheimer Stephens & Vrevich and Darin L. Wessel for Defendants and Appellants R.C. Sehnert, Inc. and Ron Sehnert.
Cameron, Pearlson & Foster and Richard J. Foster for Ante Marijanovic, aka Tony Marijanovic for Defendants and Respondents.
A general contractor was sued by a condominium owners association for latent defects in the construction of the condominium complex. The general contractor cross‑complained against the painting subcontractor for indemnity. Ultimately, the entire action settled without contribution from the painter, and the painter was voluntarily dismissed without prejudice. The painter then brought the instant malicious prosecution action against the general contractor and its counsel.
The general contractor and its counsel each filed anti-SLAPP (Code Civ. Proc., § 425.16) motions, which were denied on the basis that the painter had established a prima facie case of malicious prosecution. We disagree, concluding the evidence presented on the anti-SLAPP motions fails to establish an absence of probable cause to bring the underlying cross-complaint against the painter. That painter's counsel had represented to the general contractor's counsel that the painter was not liable for the defects alleged is insufficient, as a matter of law, to establish a lack of probable cause to pursue the cross-complaint. Similarly, the fact that the painter introduced his own declaration of non-liability in opposition to the anti-SLAPP motion is also insufficient. The general contractor and its counsel possessed evidence that painter was liable; that painter may not, in fact, have been liable cannot defeat probable cause.
FACTUAL AND PROCEDURAL BACKGROUND
The pertinent facts are set forth in the complaint in the instant action, and the exhibits thereto. On March 12, 1999, Oakridge Condominium Association (â€
