Beck v. Intravaia Rock & Sand Corp

Filed 6/16/06 Beck v. Intravaia Rock & Sand Corp. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Frederick A. Mandabach, Judge. Reversed.

Lord, Bissell & Brook and William S. Davis for Defendants and Appellants Intravaia Rock and Sand Corporation and Ron Willemsen.

Milstein, Adelman & Kreger and Wayne S. Kreger for Defendant and Appellant Lee Jackson.

Reiss & Johnson, Stephan J. Johnson and James V. Reiss for Plaintiff and Respondent.

1. Introduction

Defendants appeal from an order denying their special motion to strike brought under Code of Civil Procedure section 425.16, known as the SLAPP statute. Plaintiff Kenneth Beck's lawsuit is based on a letter written by defendant Lee Jackson to the City of Upland regarding alleged code violations. After the letter, the city filed a code enforcement action against Beck's trucking company, Dineen Trucking, and the San Bernardino District Attorney filed felony charges against Beck.

We hold Beck did not show a prima facie case for malicious prosecution. We reverse the trial court's order denying the SLAPP motion.

2. Factual and Procedural Background

In January 2005, plaintiff filed a federal complaint for civil rights violations, various torts, and breach of contract against defendants Intravaia Rock and Sand Corporation; its president, Ron Willemsen; its attorney, Lee Jackson; and the City of Upland and other defendants. The federal case was dismissed as to the instant defendants in April 2005.^[1]

Thereafter, Beck filed a state action against the present defendants, not including the City of Upland, for malicious prosecution. Beck's state claim alleges he owns Dineen Trucking, Inc., an Upland trucking company that has been in operation since 1958. Beck operated the company until November 2003. Intravaia and Dineen had been competitors for 30 years.

On September 8, 2003, the City of Upland awarded a $350,000 contract to Intravaia without public bidding. Beck advised the city that he would complain about the contract at the next city council meeting on September 23. On September 22, Willemsen threatened Beck about making a public complaint. At a meeting with the city and Willemsen, the mayor, John Pomierski, warned Beck against making a public complaint at the city council meeting. Ultimately, the city rescinded the contract award to Intravaia.

In October 2003, Willemsen questioned Beck about whether Dineen was operating legally and threatened to interfere with Beck's business. On November 20, Jackson, Intravaia's lawyer, wrote a letter to the City accusing Dineen of violating various regulations and lacking a conditional use permit for its crushing operations. The city began an investigation in December.

In January 2004, the city gave Beck notice of three violations of the municipal code. Subsequently, after Beck argued with police chief, Martin Thouvenell, and Upland employee, Jeff Mendenhall, the San Bernardino District Attorney charged Beck with two felony counts of violating Penal Code section 69. In February 2004, Beck installed perimeter fencing for his business and obtained an engineer's geotechnical report on site slope requirements for existing dirt piles on Dineen's property. Later he was charged with three misdemeanor criminal offenses for violating the municipal code. The court dismissed the felony charges in May 2004. In September 2004, the city dismissed the misdemeanor charges. Beck blames defendants for initiating and pursuing the prosecutions against him as retaliation for his whistleblowing activity in complaining to the city about the contract awarded to Intravaia.

Defendants filed two separate but similar SLAPP motions, arguing primarily that the federal action precluded the state action and that Beck could not show the probability of prevailing because he could not establish the elements of malicious prosecution.

The trial court ruled that different primary rights were involved in the federal and state actions and the state action for malicious prosecution was not barred. The court also ruled that the facts supported an inference of malice and that the underlying felony and misdemeanor prosecutions had been terminated favorably to Beck. The court did not specifically discuss whether there had been probable cause for the underlying actions. The court denied defendants' SLAPP motions and they now appeal. (Code Civ. Proc., §§ 425.16, subd. (j), and 904.1, subd. (a)(13).)

3. Discussion

Code of Civil Procedure section 425.16 â€