Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. VC046441, Patrick T. Meyers, Judge.
Law Offices of David Burkenroad and David Burkenroad for Defendant and Appellant.
Arthur G. Newton for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendant Margherita Palumbo (Palumbo) appeals from an order denying her special motion to strike (Code Civ. Proc., § 425.16) a complaint for malicious prosecution filed by plaintiff Monica Bavender (Bavender). We affirm.
Palumbo is also identified in these proceedings as Margherita Underhill and Margherita Palumbo Underhill.
FACTUAL AND PROCEDURAL BACKGROUND
On April 3, 2006, Bavender filed a complaint against Palumbo for malicious prosecution, abuse of process, and intentional and negligent infliction of emotional distress. The complaint was based upon Palumbo’s filing of an unlawful detainer action against her. Bavender alleged that the unlawful detainer action was terminated in her favor based on a finding that Palumbo did not have an ownership interest in the property from which she sought to evict Bavender. Bavender further alleged that after losing the unlawful detainer action, Palumbo obtained a temporary restraining order to keep Bavender away from the property, falsely claiming that Bavender had attacked her. As a result, Bavender was removed from her home and forced to spend money to defend herself. Bavender alleged that Palumbo acted maliciously and without legal justification in taking these actions.
Palumbo answered the complaint, denying the allegations and asserting a number of affirmative defenses, including the lack of a final judgment in Bavender’s favor in the underlying actions and privilege. She then filed a special motion to strike. In support of this motion, she submitted her declaration, stating the following:
Palumbo’s father, Franco Palumbo (Franco), asked Palumbo to bring an unlawful detainer action against Bavender on behalf of himself, Palumbo’s brother, Pietro Palumbo (Pietro), and Palumbo. Franco led Palumbo to believe that Pietro was concerned over the possibility that Bavender might obtain a possessory or ownership interest in real property located at 5224 Stevely Avenue in Lakewood through adverse possession or an implied domestic partnership agreement.
Palumbo is an attorney.
Palumbo filed the unlawful detainer action against Bavender. At the time, she believed she was the sole equitable owner of the Stevely Avenue property. She was shocked when Pietro testified that the money she provided for a down payment on the property was a loan, not an investment for which she obtained an equitable interest in the property. She was equally shocked when Pietro testified that he wanted Bavender to continue living with him on the property. Had she known Pietro would testify in this manner, she would not have brought an unlawful detainer action but rather would have brought an action to quiet title.
After Bavender prevailed in the unlawful detainer action, Palumbo was uncertain whether the court had determined that she had no title to or possessory interest in the Stevely Avenue property, or whether it determined that she did not have exclusive title to or possessory interest in the property. For that reason, she filed a notice of appeal. She relied on the law firm of Bergkvist, Bergkvist & Carter to handle the appeal. The Bergkvist firm did not timely designate a record on appeal, and as a result, Palumbo received a notice of default on April 20, 2006. Palumbo filed a motion for relief from default, but she had not yet received a ruling on her motion.
In opposition to Palumbo’s special motion to strike, Bavender submitted declarations by herself and Pietro. Bavender and Pietro declared:
Bavender had lived with Pietro, her boyfriend, and Franco at the Stevely Avenue property since December 1999. She had the consent of Pietro and Franco to live there. Palumbo lived at 6912 Henrilee Street in Bellflower, with her husband and children.
On December 4, 2005, Palumbo had Bavender served with a 30-day notice of termination of tenancy. Then on January 25, 2006, Palumbo filed an unlawful detainer action against her (Palumbo v. Bavender (Super. Ct. L.A. County, 2006, No. 06C00173)). In the verified complaint, Palumbo identified herself as the owner of the Stevely Avenue property. At the trial of the unlawful detainer action, Palumbo testified that she was the owner of the Stevely Avenue property, a co-owner of the property, or a successor in interest to the owner of the property. The court granted Bavender’s motion for nonsuit, finding that Palumbo lacked standing to bring the unlawful detainer action, in that she had not proved that she had an ownership interest in the property or was responsible for the management of the property.
Then on March 3, 2006, Palumbo filed requests for temporary restraining orders under the Domestic Violence Prevention Act (Palumbo v. Palumbo (Super. Ct. L.A. County, 2006, Nos. VQ008217, VQ008218); Palumbo v. Bavender (Super. Ct. L.A. County, 2006, No. VQ008219)). In her request, Palumbo stated that she had purchased the Stevely Avenue property and lived there since December 1999. Palumbo gave no notice of the requests, which were granted following an ex parte hearing. Thereafter, Los Angeles County Sheriff’s Deputies removed Bavender and Pietro from the Stevely Avenue property. Bavender’s and Pietro’s attorney, following a noticed ex parte hearing, obtained a modification of the temporary restraining order, which allowed Bavender and Pietro to return to the Stevely Avenue property. A hearing on Palumbo’s request for permanent injunctive relief was scheduled for March 28, 2006. Without notice, Palumbo had the matter taken off calendar.
Pietro added in his declaration that he had lived with Bavender and Franco at the Stevely Avenue property since December 1999, when he and Franco had purchased the property. Pietro and Franco held title to the property jointly. Palumbo had never held an ownership interest in the property, lived on the property, or been authorized to take action regarding the property. Pietro testified in the unlawful detainer action that Palumbo was not authorized to file that action.
In her reply to Bavender’s opposition to the special motion to strike, Palumbo stated that she had not worked as a lawyer since April 2005 but instead had been working as a paralegal. She obtained assistance for her real estate problems from Brian T. Sullivan (Sullivan), whom she met at the law library at the Long Beach courthouse. Sullivan represented himself to be a lawyer and seemed “extraordinarily knowledgeable about general litigation.” Palumbo did not know that he had been in prison for falsely representing himself to be a lawyer.
Palumbo did not understand landlord-tenant law. She told Sullivan that she was a co-owner of the Stevely Avenue house. Sullivan told her that all owners must agree as to the tenancy of a non-owner, and that “‘any owner can have a nonowner kicked out.” He also told her that title was not an issue in an unlawful detainer proceeding. He directed her in drafting the unlawful detainer complaint. She later learned that Sullivan’s advice was incorrect, but she “was greatly relieved to discover that California law permits the defense of ‘reliance on counsel’, even when the counsel was an imposter like Brian T. Sullivan.”
Palumbo went on to explain that she had sought Sullivan’s advice because Franco had been pressuring her to take action to prevent Bavender from acquiring an interest in the Stevely Avenue house through adverse possession or through an implied domestic partnership. She never received any information from Pietro “to the effect that he did, in fact, want Ms. Bavender in the home.”
At the same time Palumbo filed her reply to Bavender’s opposition to the special motion to strike, Palumbo filed a case management statement. In it, she stated that she was seeking reformation of the deed to the Stevely Avenue house in a related case. In that case, she was also suing Franco and Pietro for deceit, claiming they took her money for the purchase of the house, falsely promising that her name would be on the deed to the property. Palumbo claimed that due to the pendency of the related case, Bavender’s lawsuit was premature.
The related case was one to quiet title filed against Bavender by Franco and Pietro. She filed a cross-complaint against them seeking reformation of the deed, damages for deceit and other relief. (Palumbo v. Palumbo (Super. Ct. L.A. County, No. VC046440).)
The trial court denied Palumbo’s special motion to strike. It found that while Palumbo had met her burden of establishing that the acts complained of arose from protected activity as required by Code of Civil Procedure section 425.16, Bavender had met her burden of showing that she would prevail on one or more of her causes of action. Bavender therefore was entitled to proceed with her lawsuit.
DISCUSSION
Code of Civil Procedure section 425.16 (hereinafter section 425.16) provides that “[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 making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subds. (b)(1), (b)(2).)
In determining whether the motion should be granted, the court engages in a two-step process. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) First, it determines whether the defendant “has made a threshold showing that the challenged cause of action is one ‘arising from’ protected activity.” (City of Cotati, supra, at p. 76; Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, 1018, disapproved on another ground in Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065.) If so, then it must determine whether plaintiff has shown a probability of prevailing on its claim. (City of Cotati, supra, at p. 76; Drum, supra, at p. 1018.)
On appeal, we review the trial court’s determination de novo. (Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 184; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.) The questions are whether the defendants have satisfied their burden of establishing that section 425.16 applies (ComputerXpress, Inc., supra, at p. 999) and “whether the plaintiff has satisfied his burden of making a prima facie showing of facts that, if proved at trial, would support a judgment in his favor.” (Schroeder, supra, at p. 184).
Palumbo does not challenge the trial court’s finding that she established that section 425.16 applies. She challenges the finding that plaintiff met her burden of establishing a probability of prevailing on the merits. Specifically, Palumbo contends that because the unlawful detainer action was on appeal and therefore not yet final, Bavender could not establish a probability of prevailing on her malicious prosecution cause of action. She also contends that Bavender will be unable to prove malice.
In order to prevail in an action for malicious prosecution, the plaintiff must prove that the underlying action was (1) commenced by or at the defendant’s direction and terminated favorably as to the plaintiff, (2) brought without probable cause, and (3) initiated with malice. (Crowley v. Katleman (1994) 8 Cal.4th 666, 676; Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1147.) Whether or not Bavender could establish favorable termination of the unlawful detainer action while it was pending on appeal, we take judicial notice of the fact that the judgment in Bavender’s favor in the unlawful detainer action has now been affirmed on appeal. (Evid. Code, § 452, subd. (d); Palumbo v. Bavender (Super. Ct. L.A. County, App. Div., 2007, No. BV026396).) Thus, as a matter of law, the unlawful detainer action was terminated favorably to Bavender. Palumbo does not contend that the termination of the domestic violence action was not in Bavender’s favor.
Palumbo also asserts that Bavender will be unable to prove malice, relying on the pending quiet title action filed against her by Franco and Pietro, in which she is seeking reformation of the deed by cross-complaint. She claims the resolution of that action will show that she did not act with malice, in that she should have been made a co-owner of the Stevely Avenue house on the deed and she had reason to believe that she was, in fact, an owner of the property.
The question before us, however, is not what Palumbo may be able to prove but “whether [Bavender] has satisfied [her] burden of making a prima facie showing of facts that, if proved at trial, would support a judgment in [her] favor.” (Schroeder v. Irvine City Council, supra, 97 Cal.App.4th at p. 184.) That is, in this case, whether Bavender made a prima facie showing of facts supporting a finding of malice.
Malice in the context of a malicious prosecution action “relates to the subjective intent or purpose with which the defendant acted in initiating the prior action. [Citation.] The motive of the defendant must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose. [Citation.] The plaintiff must plead and prove actual ill will or some improper ulterior motive. [Citation.] It may range anywhere from open hostility to indifference. [Citation.]” (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 494, italics omitted.)
Malice may be inferred from a lack of probable cause plus other evidence showing wrongful purpose. (Downey Venture v. LMI Ins. Co., supra, 66 Cal.App.4th at pp. 498-499 and fn. 29.) Bavender presented evidence that Palumbo acted without probable cause, in that she did not own the Stevely Avenue house and had never been authorized by the owners, Franco and Pietro, to file an unlawful detainer action or obtain a temporary restraining order against Bavender. Additional evidence of wrongful purpose was evidence that Palumbo lied on the paperwork she filed to obtain the temporary restraining orders, claiming she had purchased the Stevely Avenue property and lived there since December 1999. Even if she believed she had been one of the purchasers of the property, she clearly knew she had not lived there since 1999, in that she lived elsewhere with her husband and children. Additionally, Palumbo gave no notice of her requests for temporary restraining orders, and she had both Bavender and Pietro removed from the property, even though Pietro was one of the owners. This evidence provides a prima facie showing of facts supporting a finding of malice.
In summary, Bavender met her “burden of making a prima facie showing of facts that, if proved at trial, would support a judgment in [her] favor.” (Schroeder v. Irvine City Council, supra, 97 Cal.App.4th at p. 184.) Palumbo’s special motion to strike therefore was properly denied. (Ibid.)
We need not address Palumbo’s additional contention that she did not commit any criminal act, made in response to accusations made in Bavender’s opposition to the special motion to strike. Discussion of this contention is unnecessary to our resolution of this appeal.
DISPOSITION
The order is affirmed.
We concur:
VOGEL, Acting P. J., ROTHSCHILD, J.