Pestano v. Saturn of Ontario

Filed 3/10/06 Pestano v. Saturn of Ontario 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. J. Michael Gunn, Judge. Affirmed.

Law Offices of Stephen A. Colby, Stephen A. Colby and Jon A. Dieringer for Plaintiff and Appellant.

Narvid Scott & Schwartz and Robert Peter Weiss for Defendants and Respondents.

1. Introduction

This appeal arises from the trial court granting summary judgment in favor of defendants and respondents Saturn of Ontario (Saturn) and the Law Offices of Norman J. Hoffman^[1] on plaintiff and appellant Howard Pestano's malicious prosecution complaint. The malicious prosecution action arises from a complaint (underlying action) filed by Hoffman, on behalf of Saturn, against Howard Pestano (Pestano) and various other defendants for refusing to honor a 90-day money-back guarantee. Saturn invoked the guarantee because of dissatisfaction with LoanLogic, automobile financing software. After three years of litigation, Saturn voluntarily dismissed its action on the eve of trial. Pestano then sued Saturn in the instant action for malicious prosecution.

Pestano appeals summary judgment on the grounds the trial court erred in finding it was undisputed there was no favorable termination of the underlying action, there was probable cause to bring the underlying action, and there was no evidence of malice. Pestano also argues the trial court granted summary judgment based on inadmissible evidence.

We conclude Pestano failed to refute there was no favorable termination of the underlying action. Admissible evidence established that Saturn dismissed its action based on the economic impracticality of incurring additional litigation expenses trying the underlying case when it was unlikely Saturn would collect on a judgment against Pestano. Due to the absence of evidence of a favorable termination, Pestano cannot prevail on his malicious prosecution action, and summary judgment was properly granted. We affirm the judgment.

2. Facts and Procedural Background

On February 5, 1998, Pestano and his employee, Steve McClain, met with James Trainer, Saturn's president and owner, and Donald Powell, a Saturn employee, to demonstrate LoanLogic, a computer software product. During the meeting, Pestano demonstrated LoanLogic, which was designed to aid car dealerships in obtaining financing for people with poor credit.

According to Pestano, his brother, William Pestano, is sole owner of Pestano & Associates, which marketed and licensed software programs, such as LoanLogic, for automobile dealers. Pestano occasionally assisted Pestano & Associates in marketing the software as an unrelated, incidental product offered along with PMA Marketing's direct mailings services. Pestano is part owner of PMA Marketing (PMA), an advertising company specializing in providing advertising for automobile dealers. PMA later became Spectrum Business Solutions.

After the LoanLogic demonstration on February 5th, Trainer signed a PMA order form agreement (order form contract) for bulk advertisement mailers and LoanLogic. The PMA order form contract stated under the LoanLogic payment terms, â€