Galdjie v. Moses

Filed 9/28/06 Galdjie v. Moses CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from an order of the Superior Court of Los Angeles County. Bert Glennon, Jr., Judge. Reversed and remanded with instructions.

Nemecek & Cole, Jonathan B. Cole, Claudia L. Stone, and Mark Schaeffer for Defendant and Appellant.

Law Offices of Barry S. Zelner, Barry S. Zelner and Charles Fonarow for Plaintiff and Respondent.

Appellant Garry Moses appeals from an order of the trial court denying his special motion to strike under Code of Civil Procedure section 425.16,^[1] in favor of respondent Parviz Galdjie, M.D. We reverse the order of the trial court.

CONTENTIONS

Appellant contends that the trial court’s order should be reversed because: (1) respondent did not show a probability of success on the abuse of process claim; (2) the litigation privilege barred the abuse of process claim; (3) respondent did not show a probability of success on the malicious prosecution claim; and (4) the abuse of process and malicious prosecution causes of action were barred by the statute of limitations.FACTS AND PROCEDURAL HISTORY

On June 20, 2005, respondent filed a complaint for malicious prosecution and abuse of process against appellant. Respondent alleged that on September 21, 2001, appellant maliciously and without probable cause filed a complaint for medical malpractice against respondent and Rodrigo Sanchez, D.C., on behalf of Jeanne and Johanna Sampson (the underlying action).

Appellant filed a special motion to strike under section 425.16, attaching his declaration stating that he: filed the underlying action against respondent to protect his clients’ rights; believed the complaint was meritorious; and did not file the complaint out of malice. Appellant declared that Johanna had been involved in a rollover car accident. Respondent examined her and cleared her for chiropractic treatment. The extent of respondent’s examination of Johanna was unclear, but the records indicated that Johanna was not x-rayed before she was treated by the chiropractor, Dr. Sanchez. After she received the chiropractic treatment, Johanna had to undergo spinal surgery. Appellant was advised by an independent chiropractor that it was below the standard of care to perform chiropractic adjustment on the lower back of a patient involved in a rollover car accident without first obtaining x-rays.

Appellant declared that after respondent’s deposition was taken on January 17, 2003, Jaime Skebba requested a voluntary dismissal of respondent in the underlying action in exchange for a waiver of costs and a waiver of a malicious prosecution claim. Appellant informed Skebba that he needed to take the deposition of codefendant Sanchez and obtain an expert’s review before considering dismissal. Following Dr. Sanchez’s deposition on March 18, 2003, Skebba again requested respondent’s dismissal. Appellant mailed respondent’s deposition transcript to an orthopedist on April 29, 2003. When he did not receive an opinion within a reasonable time, appellant sought an opinion from another orthopedist, who opined that respondent’s care and treatment were within the standard of practice. Once he received that opinion, he obtained his clients’ authority to dismiss respondent.

Skebba declared that on May 9, 2003, he filed a motion for summary judgment in the underlying action on behalf of respondent. He stated that on June 20, 2003, appellant agreed to a voluntary dismissal of respondent. Skebba declared that respondent refused to waive the malicious prosecution action because his increased insurance rates were already locked in; thus, a dismissal at that point would not matter. However, respondent stated he would consider a waiver if appellant sent him a letter indicating the underlying action was based on incorrect information. On July 14, 2003, appellant provided the requested letter, which respondent found to be inadequate. Respondent refused to waive his claim for malicious prosecution. On July 31, 2003, the trial court granted respondent’s unopposed motion for summary judgment in the underlying action.

Respondent filed the instant complaint against appellant for malicious prosecution and abuse of process. The trial court denied appellant’s special motion to strike and this appeal followed.

DISCUSSION

I. Section 425.16

Section 425.16 permits a court to dismiss certain nonmeritorious claims in the early stages of the lawsuit. (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.) Under section 425.16, subdivision (b)(1), “A cause of action against a person arising from any act of that person in furtherance of the person’s 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.”

In determining whether to grant or deny a section 425.16 motion to strike, the court engages in a two-step process. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) First, the court must decide whether the defendant has met his or her threshold burden of showing that his or her acts arose from protected activity. (§ 425.16, subd. (b)(1); Navellier, supra, at p. 88.) If the defendant meets his or her burden of showing that the activity is protected, then the court determines whether the plaintiff has carried his or her burden of showing that there is a probability that he or she will prevail on the claim. (§ 425.16, subd. (b)(1); Navellier, supra, at p. 88.)

On appeal, we independently review whether section 425.16 applies and whether the plaintiff has a probability of prevailing on the merits. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)

II. The malicious prosecution and abuse of process causes of action

A. The threshold burden

Appellant contends that he has met his threshold burden of showing that section 425.16 applies to respondent’s claims for malicious prosecution and abuse of process because the filing of the complaint in the underlying action was an act in furtherance of the right of petition or free speech. We agree. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965 (Zamos) [malicious prosecution action arose from acts in furtherance of appellant’s right of petition or free speech]; Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056 (Rusheen) [abuse of process action arose from acts committed by attorneys in representing clients in litigation, which are protected under section 425.16].)

We are not persuaded otherwise by respondent’s argument that section 425.16 must be construed narrowly and contains a public interest limitation. Respondent’s reliance on Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc. (1996) 50 Cal.App.4th 1633, 1639 (Linsco) for that proposition is misplaced. Linsco was overruled by our Supreme Court on that specific point, and section 425.16 was amended within a year of Linsco’s issuance, to add a broad construction proviso. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1120, 1123 [disapproving Linsco to the extent it imposes a narrow interpretation of section 425.16, and requires a separate showing of public interest].)

B. The probability of success on the merits of the malicious prosecution claim

1. The elements of a malicious prosecution claim

In order to show probability of success under section 425.16, the plaintiff must show the “complaint is 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.” (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823 [disapproved in part on another ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5].) Whether the plaintiff has established a prima facie case is a question of law, and the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant. (Zamos, supra, 32 Cal.4th at p. 965.)

“‘”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, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].” [Citation.]’ [Citation.]” (Zamos, supra, 32 Cal.4th at pp. 965-966.) Malicious prosecution is not limited to the commencing, bringing or initiating of an action without probable cause, but also applies to an attorney who continues to prosecute a lawsuit after discovering that it lacks probable cause. (Id. at p. 970.)

Whether probable cause exists depends on an objective evaluation of legal tenability based on either the facts known to the defendant at the time he brought the action or subsequent events demonstrating that the action was objectively tenable. (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 497-498.) Malice relates to the subjective intent of the defendant, and can be proven by evidence of actual hostility or ill-will on the part of the defendant or a subjective intent to deliberately misuse the legal system for personal gain or satisfaction. (Id. at pp. 496-499.)

2. Respondent did not show lack of probable cause or malice

We disagree with respondent’s contention that he made a prima facie showing of facts sufficient to support a finding of lack of probable cause or malice.

Zamos, supra, 32 Cal.4th 958, illustrates what can constitute an objective lack of probable cause. There, attorney James Stroud sued his client’s former attorney, Jerome Zamos, for fraud based on Zamos’s representation of the former client in a malpractice lawsuit. Zamos sent Stroud transcripts of court hearings in which Zamos and the client stated on the record that Zamos had represented the client in a foreclosure action, but would not, and never had, represented her in the malpractice lawsuit. Stroud refused to dismiss the lawsuit, and Zamos moved for summary judgment, which was denied. Subsequently, the trial court granted Zamos’s motion for a nonsuit, finding that no reasonable jury would find in favor of the plaintiff, and that the transcripts of the court hearings estopped the fraud action. (Id. at p. 963.) Zamos then sued Stroud for malicious prosecution. Stroud filed a motion to strike under section 425.16, which was granted by the trial court. Our Supreme Court affirmed the appellate court’s reversal of the trial court’s dismissal as to Stroud, recognizing that the continuation of a baseless claim is as harmful to the defendant and burdens the court system just as much as initiating an action known to be baseless from the outset. (Id. at p. 969.)

Here, Skebba’s declaration did not state facts supporting the conclusion that appellant continued to prosecute the medical malpractice action against respondent after receiving evidence demonstrating that the action was not objectively tenable. Unlike Zamos, where the defendant received transcripts of court hearings proving that there was no factual basis for a legal malpractice claim, Skebba’s proferred evidence was vague and sketchy. Skebba merely declared that after his expert reviewed written discovery and depositions of the plaintiff and respondent, he contacted appellant in 2003 to request a dismissal of respondent. Appellant, on the other hand, declared that he had been advised that failure to take lower back x-rays prior to chiropractic treatment, of a patient who had been involved in a rollover car accident, was below the standard of care. Appellant’s response that he would not consider dismissing respondent until he took the deposition of codefendant Dr. Sanchez and obtained an expert opinion, simply does not show an objective lack of probable cause to continue the action. Indeed, his dismissal of respondent at that point may well have constituted a breach of his duty to conduct a thorough investigation and review, possibly resulting in a legal malpractice action against him. In any event, once he obtained the expert’s opinion that respondent acted with due care, appellant did not continue to prosecute the action, but obtained his clients’ authority to dismiss the matter. He then prepared the letter of apology.

Furthermore, the period of time between Dr. Sanchez’s deposition on March 18, 2003, and appellant’s agreement to a voluntary dismissal on June 20, 2003, was not excessive, particularly in light of the delay caused by appellant’s first expert orthopedist. Appellant was in continuous contact with Skebba and provided the requested letter on July 14, 2003, within four months of Dr. Sanchez’s deposition, and three days before the opposition was due on respondent’s summary judgment motion. However, by the time respondent received and rejected appellant’s letter of apology, the time to file an opposition to the summary judgment motion had passed.

Nor has respondent made a prima facie showing of facts sufficient to sustain a finding of malice. Appellant declared that he filed the complaint to protect his clients’ rights, and not out of malice or ill-will toward respondent, whom he met for the first time when respondent’s deposition was taken on January 17, 2003. Respondent did not set forth facts evidencing actual hostility or ill-will on the part of appellant or a subjective intent to deliberately misuse the legal system for personal gain or satisfaction.

We conclude that respondent failed to show a probability that he would prevail on his malicious prosecution claim.

C. Abuse of process

1. The elements of abuse of process

In order to succeed in an action for abuse of process, the plaintiff must show that the defendant contemplated an ulterior motive in using the process, and committed a willful act in the use of the process not proper in the regular conduct of the proceedings. (Rusheen, supra, 37 Cal.4th at p. 1057.)

2. Respondent did not show the elements of abuse of process

We conclude that respondent did not show facts supporting a prima facie case of abuse of process, sufficient to support a judgment.

“[T]he mere filing or maintenance of a lawsuit - even for an improper purpose - is not a proper basis for an abuse of process action. [Citations.]” (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169.) To hold otherwise would negate the “‘lack-of-probable-cause’” element of the malicious prosecution tort. (Ibid.) That is, “even if an individual could demonstrate that he had reasonable cause to believe that his initial lawsuit had merit when he filed the action, he would still face potential liability under an abuse of process theory.” (Id. at pp. 1169-1170.) Thus, our Supreme Court held that “this element may not be circumvented through expansion of the abuse of process tort to encompass the alleged improper filing of a lawsuit.” (Id. at p. 1170.)

Here, respondent’s action for abuse of process was founded only on appellant’s filing of the complaint in the underlying action and refusal to dismiss the action until after he obtained deposition testimony and expert review. Respondent failed to state facts showing an ulterior purpose or a willful act not proper in the regular conduct of the proceeding.

We conclude that respondent failed to show a probability of prevailing on the cause of action for abuse of process.

III. We need not address the litigation privilege and statute of limitations arguments

In light of our conclusion that respondent did not show a probability of success on the abuse of process claim, we need not address appellant’s further argument that the litigation privilege of Civil Code section 47, subdivision (b)^[2] barred the abuse of process action. We also need not address appellant’s contention that the statute of limitations barred the malicious prosecution and abuse of process claims.

DISPOSITION

The trial court’s order denying appellant Moses’s motion to strike under section 425.16 is reversed. On remand, the trial court is directed to enter a new order granting appellant Moses’s motion to strike the complaint pursuant to section 425.16. Further, the trial court is to consider and rule upon the attorney fees request of appellant Moses, including those incurred on appeal, pursuant to section 425.16, subdivision (c). Appellant Moses shall recover costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

CHAVEZ

We concur:

_______________________, Acting P. J.

DOI TODD

_______________________, J.

ASHMANN-GERST

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^[1] All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

^[2] Civil Code section 47, subdivision (b) provides, in part, that a privileged publication or broadcast is one made in any judicial proceeding.