Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SC085580, Allan J. Goodman, Judge. Affirmed.
Law Office of Joseph D. Davis, Joseph D. Davis; and Charlotte E. Costan for Plaintiff and Appellant.
Richardson & Harman, Kelly G. Richardson and Richard C. Moore for Defendant and Respondent.
MALLANO, P. J.
Plaintiff Eugene L. appeals from a judgment entered after the trial court granted summary judgment for the second time in favor of defendant Gina F. on Eugene’s action against Gina for malicious prosecution. Eugene contends that the trial court erred in granting summary judgment, claiming triable issues of material fact exist on the issues of causation, the advice of counsel defense, and malice. He also contends that the doctrine of the law of the case requires reversal because we reversed the judgment entered after the trial court granted an earlier summary judgment motion brought by Gina. We conclude that the trial court did not err in granting summary judgment and that the law of the case does not bar the granting of the second summary judgment motion because there are no triable issues of material fact in light of our de novo review of evidence produced subsequent to the earlier summary judgment motion, including Gina’s declaration, the deposition of Eugene’s expert witness, Dr. Amy Rosenman, and the deposition of Gina’s trial attorney, Stephen L. Belgum. We affirm the judgment of the trial court.
BACKGROUND
We take judicial notice of our nonpublished opinion in Eugene L. v. Gina F. (Nov. 10, 2008, B202856) (Evid. Code, §§ 452, 459) and from it take the following background.
“In 1993, Eugene had a condition known as ‘genital warts, ’ which he learned in March 2002 to be condyloma, a manifestation of HPV. Gina and Eugene dated and had unprotected sexual intercourse in February 2002. After Gina tested positive for HPV in March 2002, she consulted Belgum in April 2002. In February 2003, Belgum, on Gina’s behalf, sued Eugene for damages, alleging that Eugene had infected her with HPV. Eugene moved for summary judgment. In May 2004, the court granted his motion on the ground that, as opined in a declaration by Eugene’s expert gynecologist Dr. Amy Rosenman, Gina could not prove within a reasonable medical probability that it was Eugene who had infected her with HPV. Gina appealed from the judgment, but the appeal was dismissed. A remittitur was issued in December 2004. (B177813.)
“In May 2005, Eugene filed the instant action for malicious prosecution against both Gina and Belgum. Eugene filed a first amended complaint (complaint) in October 2005. After answering the complaint, Gina moved for summary judgment on the ground that she relied on the advice of counsel in initiating the underlying action, thus defeating one of the elements of Eugene’s malicious prosecution claim. [¶]... [¶]
“In support of her defense of good faith reliance on counsel, Gina provided her declaration as well as that of Belgum. Gina declared as follows: Before her relationship with Eugene, she had not been diagnosed with HPV; she disclosed to Belgum ‘all of the relevant facts’ known to her regarding the underlying action, including her relationship with Eugene and her sexual and medical history; she granted Belgum access to her medical records; Belgum advised her that she had probable cause to file a complaint against Eugene, and Belgum agreed to represent her in the matter; Belgum filed her complaint against Eugene in February 2003; at all times during the course of the underlying action, she relied upon Belgum’s advice in handling all matters, including settlement demands and attempts to informally resolve the dispute; at no time after the filing of the complaint and during the course of discovery in the underlying action did Belgum tell her that he had changed his evaluation of the case.
“Belgum declared as follows: Gina consulted with him in April 2002 regarding the facts of the underlying action; she cooperated fully with him and provided all of the information available to her so that he could evaluate her case; he advised her that she had probable cause to file the complaint against Eugene; he filed such complaint in February 2003; at no time after the filing of the complaint or during the course of discovery did he advise Gina that he had changed his evaluation of the case; and at no time did he discover that the facts of the underlying action differed from the account of the events related to him by Gina. [¶]... [¶]
“According to Eugene, Gina told him during the time they dated that she had had sexual intercourse with 12 men before him and that in 1997 she had a sexual relationship with Joe F., the creator of the ‘Girls Gone Wild’ videos and who claimed to have had sexual relations with hundreds of women. In August 2003, Gina provided verified responses to interrogatories in which she admitted to having sexual relations with seven men between March 1993 and February 2003; Joe F. was not one of the men listed in her response. When Gina was deposed in December 2003, she supplied the name of Joe F.
“Eugene also argued that, in light of the statistical evidence in the declaration of Dr. Rosenman, the greater the number of sexual partners before Eugene, the more likely it was that Gina was infected with HPV before she met Eugene. According to Rosenman, HPV is the most prevalent sexually transmitted infection in the world, occurring at some point in 75 percent of sexually active adults; although the infection is widespread, few people know that they are infected because they seldom have noticeable symptoms; about 25 percent of those infected will develop warts; and multiple sex partners is a major factor in determining whether a person becomes infected with HPV. It was not possible to attribute Gina’s HPV exposure to Eugene in the absence of a thorough and reliable exposure history of Gina and her partners. In Rosenman’s opinion, it could not be proven to a reasonable degree of medical probability that Eugene infected Gina with HPV. [¶]... [¶]
“After a hearing in June 2007, the court granted Gina’s motion. Eugene appealed from the judgment.” (Eugene L. v. Gina F., supra, B202856 at pp. 2–5.)
On November 10, 2008, we reversed the judgment of the trial court, determining that there was a triable issue of material fact as to whether Gina provided Belgum with all relevant facts. We relied on Rosenman’s undisputed evidence that “75 percent of sexually active adults have HPV, only 25 percent of those infected with HPV will develop noticeable symptoms, warts may appear months or even decades after exposure, and the first FDA-approved test for HPV was available in 1999.” (Eugene L. v. Gina F., supra, B202856 at p. 8.) Based on Rosenman’s declaration, we concluded that “Gina’s sexual history from 1993 to 1998 is relevant to the causation issue because the high prevalence of HPV in the population of sexually active adults and the potentially long latency period is relevant to the issue of whether it could be shown within a reasonable medical probability that it was Eugene and not another of her sexual partners who infected Gina with HPV.” (Ibid.)
We determined that Gina’s evidence in support of her motion was too conclusory for us to conclude that she disclosed all relevant facts about her medical and sexual history to Belgum. Gina merely declared that she “disclosed ‘all relevant facts known to her regarding the underlying action, ’” without defining “‘relevant’ and precisely what facts were disclosed.” (Eugene L. v. Gina F., supra, B202856 at p. 9.) We also determined Belgum’s declaration was similarly conclusory because he merely stated that Gina provided “‘all of the information available to her so that he could evaluate her case.’” (Ibid.)
After the matter was remanded, Gina deposed Rosenman on May 14, 2009. Rosenman testified that it was not “technically possible” to establish causation if Gina had at least one other sexual partner besides Eugene. In response to the question of how to establish causation to a reasonable degree of medical certainty, Rosenman testified, “Basically, I don’t believe you could know this, ever, because you’d need [to] know the HPV status of every person, every partner, every partner of the partner, and you’d need to know it contemporaneously all the time. It’s not knowable.” In response to the question of whether Rosenman still believed true the statement in her declaration that “‘it is not possible to attribute [Gina’s] HPV exposure to [Eugene] in the absence of a thorough and reliable exposure history of Gina... and her sexual partners (and their sexual partners) prior to her involvement with [Eugene] in January 2002, ’” Rosenman testified, “Yes, with the clarification that I don’t think it’s technically possible.” Rosenman testified that according to “population statistics, ” if a person is sexually active with more than one partner, one cannot tell to a reasonable degree of medical certainty who gave that person HPV.
Rosenman’s declaration attached to Eugene’s opposition to the first summary judgment motion stated that HPV has a long latency period during which people may not have noticeable symptoms. She opined that “latency periods of many months and even decades have been reported before the emergence of warts or cervical abnormalities... caused by the HPV infection.” Her declaration stated that the “Hybrid Capture test is the only reliable FDA-approved test for HPV.” Attached to her declaration was a copy of the March 15, 2002 positive result of Gina’s hybrid capture test for HPV. Rosenman also declared that Gina had “undergone three further pap smear examinations dated April 4, 2002, March 26, 2003 and October 23, 2003. All three reports were within normal limits and showed no evidence of HPV-related changes.” Rosenman declared that “pap smears do not test for the presence of HPV” and “do not reveal the existence of HPV.”
On October 8, 2009, Eugene deposed Belgum. In response to the question whether Belgum would have filed the complaint on Gina’s behalf in February 2003 had he known that “twice in July and once in August of 2002 Gina... had tested negative for HPV, ” Belgum stated, “All I can say to that is it may well have affected my decision-making process at the time. [¶] With 20/20 hindsight, there probably would have been other things that I would have done to further evaluate the potential case. I can’t say positively one way or another back then if I would or would not have filed the claim, depending on what my further investigation would have uncovered.”
Belgum testified that he did not know of Gina’s sexual encounter with Joe F. prior to her deposition on December 18, 2003. When asked whether he would have declined to represent her had he known of that sexual relationship, Belgum stated, “I expect I would have done other things at that point, including requesting that [Gina] contact [Joe F.], and assuming certain facts came out or didn’t come out, I would then make a new decision.” Belgum answered affirmatively the question of whether he expected Gina’s written chronology “would be full and complete with regard to all facts, including her medical and sexual histories that might bear on this lawsuit.”
Belgum also testified that prior to the time that the lawsuit was filed he told Gina that he wanted to know about every sexual relationship she had ever had in her life. He testified that he made that request “[i]n verbal form rather than written.” He stated, “I recall a conversation or more than one conversation where I asked for each and every sexual relationship. Because I recall her telling me about her first sexual relationship I think when she was at S.C., and I think there was a name associated with that, and then I recall her giving me some chronology of each and every partner she had had.” When asked if he recalled “procuring any of [Gina’s] medical records... before [he] filed the complaint, ” Belgum testified, “I believe I did.”
Gina filed a second motion for summary judgment, arguing that she relied on advice of counsel which negated one or more essential elements of Eugene’s claim and provided her with a complete defense to the entire action. Gina also argued that Eugene had no evidence that she acted with malice in instituting the underlying action.
In support of her second motion for summary judgment, Gina declared as follows. She had been sexually intimate with five other men in her life prior to Eugene; before she became sexually active with Thad L. and Nick B. in 1998 and 2001, respectively, she and they were tested for STD’s, with negative results; she had Pap tests and regular gynecological examinations every year since turning 18 and had never had an irregular result, any signs of venereal warts, any symptoms of any STD, or an STD diagnosis; after she began dating Eugene exclusively and after he assured her that he did not have any STD’s, Gina had sexual relations with Eugene in February 2002; on March 6, 2002, Eugene told Gina that he had been diagnosed with venereal warts in 1993 but that after he had them removed, he had not had another outbreak; later Eugene told Gina that he had suffered subsequent outbreaks; Gina tested positive for HPV the next week; Gina told Thad L. and Nick B. of her diagnosis; Thad L. and Nick B. then “retested for sexually transmitted diseases, specifically including HPV, ” with negative results.
Gina declared that she consulted with Belgum and “relayed all of the foregoing facts to him and agreed to give him access to all of [her] medical records.” Gina declared that in accordance with Belgum’s request, she prepared a memo. She declared, “Between this memo and our initial consultation, Belgum was fully aware before the underlying action was filed that I had been sexually active for years before I ever met [Eugene], and that I had had other sexual partners prior to him.” She declared, “I specifically recall asking Belgum how much detail he wanted me to provide in the memo regarding my prior sexual history. He told me that [Eugene] would undoubtedly try to go into all of the details of my past sex life, but that it was not relevant, and therefore my memo did not need to go back more than a couple of years before my relationship with [Eugene] began.” Based on Belgum’s instructions, Gina did not discuss in her memo three men with whom she had sexual relationships between 1993 and 1997, “although [she] would have been willing to do so had Belgum instructed [her] to include that information.” Gina declared that when Eugene propounded discovery during the underlying action inquiring about all of her former sexual partners, Belgum advised her that Eugene had no right to information regarding all of her former sexual partners “and that it was irrelevant.” She also declared that Belgum objected to Gina “providing any information about [her] sex life prior to 1998 in [her] initial responses to [Eugene’s] First Set of Special Interrogatories....”
Gina declared that in making the decision to file her action against Eugene, she relied on Belgum’s advice that she had probable cause to file a lawsuit. She declared that she never intended to conceal anything from Belgum and freely disclosed her previous sexual history to him. She did not elaborate on her pre-1998 sexual history based on Belgum’s advice that it was not relevant and because she had no history of sexually transmitted diseases prior to dating Eugene.
In his opposition to Gina’s second motion for summary judgment, Eugene argued that Gina’s declaration regarding the medical and sexual history Belgum asked her to supply to him was inconsistent with her earlier deposition testimony and Belgum’s deposition testimony. He also argued that she had failed to inform Belgum that she had three negative tests for the HPV virus in July and August 2002. He argued that Belgum testified in deposition that “without evidence of the virus... he would not have filed suit” and that Belgum testified that “no lawsuit would be forthcoming” had he known about Gina’s sexual relations with Joe F. and the other men.
In support of his opposition to Gina’s second motion for summary judgment, Eugene declared that Gina called him on January 23, 2003. When Gina told him that she had hired an attorney, Eugene asked how she “could consider” suing him if she “had no disease” and “after having sexual affairs with many other men” before him. Eugene declared that Gina responded, “‘my lawyer says that none of that matters since I was the last one she had sex with before she was diagnosed with HPV.’”
Eugene also attached to his opposition an August 14, 2002 gynecologic oncology report from UCLA Medical Center for Gina that stated: “HPV diagnosed in 3/02. Further testing revealed no evidence of disease.” The document also stated: “[Gina] was originally tested in 3/02 and was noted to have positive high risk strains of HPV. A Pap smear was also performed, which was within normal limits. She was retested as she was not sexually active with the same partner twice in July; these tests were negative for HPV. Her Pap smears were also negative at this time. [¶]... [¶]... The patient was extensively counseled regarding her HPV status and was told that she was likely infected with HPV; however, as she was not sexually active with her partner anymore, she had probably developed an immune response and is likely not a carrier any longer.”
The trial court granted Gina’s second motion for summary judgment, and this appeal followed.
DISCUSSION
A. Standard of review
A “motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subdivision (c).) A defendant in moving for summary judgment has met his burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (§ 437c, subdivision (p)(2).) “Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Ibid.)
Unless otherwise designated, statutory references are to the Code of Civil Procedure.
Where the plaintiff appeals from an order granting the defendant’s summary judgment motion, we must independently examine the record to determine whether the defendant has conclusively negated a necessary element of the plaintiff’s case or demonstrated that no triable issues of material fact exist. (Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.)
B. Malicious prosecution
1. There are no triable issues as to probable cause
Eugene argues that the trial court erred in granting summary judgment because triable issues of material fact exist as to his action for malicious prosecution on the issues of causation, the advice of counsel defense, and malice. We disagree because a close reading of the deposition transcripts and declarations provided by the parties persuades us that there exists no triable issue of material fact about Gina’s filing the action with probable cause based on good faith reliance on the advice of counsel.
“‘“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.]’” (Zamos v. Stroud (2004) 32 Cal.4th 958, 965–966.)
“‘“Probable cause may be established by the defendants in a malicious institution proceeding when they prove that they have in good faith consulted a lawyer, have stated all the facts to him, have been advised by the lawyer that they have a good cause of action and have honestly acted upon the advice of the lawyer.” [Citations.]’” (Palmer v. Zaklama (2003) 109 Cal.App.4th 1367, 1383.) Therefore, good faith reliance on the advice of counsel, after full disclosure of all relevant facts, is a defense to a malicious prosecution claim. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 53.) Relevant facts means facts the defendant knew or should have known would have defeated the cause of action. (Palmer, at pp. 1383–1384.)
We conclude that there are no triable issues of material fact about Gina’s relying in good faith on Belgum’s advice. In support of her second motion for summary judgment, Gina declared that she and the two men (Thad L. and Nick B.) with whom she had sexual relationships immediately prior to dating Eugene had tested negative for STD’s. She then had sexual relations with Eugene, who subsequently revealed to her that he had a history of genital warts. Within a month of their sexual relations, Gina tested positive for HPV. Gina then contacted Thad L. and Nick B., who retested themselves and were found negative for STD’s, “specifically including HPV.” Gina then consulted with Belgum, related the foregoing facts to him, gave him access to all her medical records, and told him “that [she] had been sexually active for years before [she] ever met [Eugene], and that [she] had had other sexual partners prior to him.” Belgum’s testimony that he asked Gina for details of every sexual relationship and that she told him of all of her sexual relationships in chronological order beginning with her first sexual experience at USC supports Gina’s account.
Nonetheless, Eugene argues that there is a triable issue as to whether Gina concealed relevant facts from Belgum. Eugene argues that Gina must be deemed to have admitted the truth of Eugene’s additional undisputed material facts because she failed to deny them. He contends the following are undisputed facts: “‘Gina did not tell Belgum about the three negative tests before he filed suit’”; “‘[i]f Gina had told Belgum before he filed suit that she had undergone three consecutive negative HPV tests... he would not have filed suit’”; and “‘[h]ad Belgum known that Gina had had sexual intercourse with Joe F[.], [Belgum] would not have filed the complaint on her behalf against Eugene [].’” But Gina filed evidentiary objections to the declarations upon which Eugene’s additional undisputed material facts were based. And these objections were sustained, in pertinent part, by the trial court.
Eugene urges that the trial court erred in sustaining Gina’s objections to Eugene’s evidence. The trial court sustained Gina’s objections to portions of the declaration of Eugene’s counsel, Joseph D. Davis, primarily on the basis that the Davis declaration was improperly argumentative. The trial court stated, “The Davis declaration is improperly argumentative in numerous respects. Rather than presenting the pertinent evidence, Davis has largely offered his spin on the evidence.”
We review the trial court’s rulings on evidentiary objections for abuse of discretion. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694 [“[T]he weight of authority holds that an appellate court reviews a court’s final rulings on evidentiary objections by applying an abuse of discretion standard.”].)
On appeal, Eugene does not explain why he believes the trial court’s ruling sustaining Gina’s objections on the basis that Davis’s declaration was argumentative was incorrect. Rather, he contends that the trial court erred in sustaining Gina’s objection to the material fact that “Gina disclosed the names of only two of her many pre-Eugene sexual partners before her lawyer filed suit” because it “cannot honestly be disputed.” The Davis declaration cites to Gina’s memorandum, stating, “Under the heading Pertinent History (p.4) she informed Belgum that prior to Eugene... she had had only two sexual partners: Thad L[.] and Nick B[.]” But, although Gina described her dating relationship with Thad L. and Nick B. in her memo, she never stated that they were her only two sexual partners prior to Eugene.
Eugene also urges that the trial court erred in sustaining Gina’s objections to Davis’s declaration that Gina acknowledged that “she had not been candid with Belgum way back on April 19, 2002 (or at any time prior to filing the complaint on February 5, 2003)...” and that Gina “gave her attorney no medical records, but merely granted him ‘access’ to those records.” The trial court sustained Gina’s objection on the basis that “Davis arguably misrepresents the evidence by placing undue constructions thereon (as a matter of example only, whether [Gina] actually gave Belgum her medical records or gave him access to her medical records are to distinctions with a difference).” Eugene also contends that the trial court erred in sustaining objections to Davis’s statement that “There is not now and never has there been an HPV test for men!” which he based on “three articles just pulled off the internet” and attached as exhibits to the declaration. Eugene argues that the trial court improperly excluded the evidence on the basis that it was not provided by way of expert opinion because, “while Eugene had not yet retained an expert, that does not mean he cannot reasonably retain one for trial.” We conclude that the trial court acted within its discretion in excluding statements that were argumentative and based on articles Davis downloaded from the Internet.
We also reject Eugene’s argument that the trial court erred in sustaining Gina’s objection to the “material facts” that Gina did not tell Belgum that she had between four and 10 sexual partners before Eugene, even though he had asked her for her “‘entire sexual history.’” In support of his argument, Eugene cites to an excerpt from Belgum’s deposition testimony, which was not pertinent to Gina’s evidentiary objections nor the trial court’s ruling. We conclude that the trial court did not abuse its discretion in sustaining Gina’s objections to evidence submitted by Eugene.
Eugene next argues that Gina concealed facts by addressing her previous sexual relations with only Thad L. and Nick B. in the written memo because if Belgum had known of Gina’s relationship with Joe F. and the other men, “he would have made ‘a new decision.’” In support of his argument, Eugene points to Belgum’s deposition testimony that he had asked Gina to provide a “full and complete” medical and sexual history “that might bear on this lawsuit” and that he did not “restrict [his] inquiry of [Gina] to only her most recent sexual partners.” (Italics added.) But we conclude that the facts are undisputed that Gina acted in good faith. Belgum testified that Gina gave him an oral chronological account of all her sexual relationships, beginning with her first sexual experience at USC. Gina declared that she, Thad L. and Nick B. tested negative for STD’s, including HPV, prior to her relationship with Eugene, and that the two men were free of STD’s, including HPV, after she had sex with Eugene. She declared that Belgum told her to provide a written memo of her sexual relationships beginning a couple of years before her relationship with Eugene, and she did so. Thus, her discussion of the relationships in her memo is consistent with Belgum’s testimony that he requested her sexual history “that might bear on this lawsuit.” (Italics added.) And Belgum never stated that, given the information regarding Gina’s previous sexual relationships, he “would have made ‘a new decision, ’” as Eugene asserts. Rather, he speculated that he “would have done other things at that point, ” including requesting that Gina contact Joe F., and “assuming certain facts came out or didn’t come out, [he] would then make a new decision.”
Even if we construe Belgum’s request for a written memo to include Gina’s entire sexual history, her failure to do so is not material. Eugene’s expert, Rosenman, testified that it was not “technically possible” to establish causation if Gina had at least one other sexual partner besides Eugene. It is undisputed that Gina provided Belgum with information that she had been sexually active with at least two other men prior to Eugene. And although Eugene contends that Gina did not file her action in good faith because there is no test for HPV for men, there is no dispute that Gina believed that Thad L. and Nick B. were HPV-free before consulting Belgum and filing her lawsuit. She declared that after she told them she had tested positive for HPV, they retested themselves “specifically for HPV” and “reported back to [her] that their tests were still negative.” Eugene also argues that Gina’s declaration is inconsistent with her deposition testimony that she “never asked her former partners whether they had been tested for HPV.” But Eugene cites to a one-page excerpt from Gina’s deposition that does not allow us to understand the context in which the question and answer were given. Immediately preceding the cited question and answer, Gina indicated, “It’s incorrect, ” to a question regarding someone named “Ammberman.” We cannot read the entire previous question and therefore cannot fully analyze Eugene’s argument.
We reject Eugene’s further argument that Gina concealed material facts from Belgum because she gave him access to her medical records but did not provide him with the actual records. Belgum testified that he obtained her medical records prior to filing suit, and Gina’s failure to hand him the medical records personally simply does not show a triable issue of material fact as to concealment.
Although Eugene acknowledges that Gina tested positive for HPV on March 15, 2002, he urges that Gina concealed material facts from Belgum by failing to tell Belgum about three subsequent tests taken on April 4, 2002, March 26, 2003, and October 23, 2003, that “were negative for HPV.” But as previously discussed, Gina gave Belgum complete access to her medical records for his review and may rely on the advice of counsel defense. (See Bisno v. Douglas Emmett Realty Fund 1988 (2009) 174 Cal.App.4th 1534, 1545–1546 [client who provided contract to attorney need not point out any particular provision in order to rely on advice of counsel defense].) In any event, Eugene mischaracterizes the evidence. Gina tested positive for HPV on March 20, 2002, in a hybrid capture test, which Rosenman declared was “the only reliable FDA-approved test for HPV.” Rosenman also declared that the three tests taken on April 4, 2002, March 26, 2003, and October 23, 2003, which Eugene now characterizes as showing “negative for HPV, ” were Pap tests. But Rosenman opined that Pap tests cannot reveal the existence of HPV. Therefore, the three Pap tests cited by Eugene as “negative for HPV” could not have revealed the existence of HPV.
We also reject Eugene’s argument that if Belgum had known of the three negative tests, he would not have filed suit because without proof that Gina had been infected with HPV, there would have been no damages. As previously stated, the record shows Gina tested positive for HPV in a hybrid capture test, and the three negative tests Eugene refers to are Pap tests, which his expert opined cannot reveal the existence of HPV. Although Eugene argues Belgum stated “it would have affected his decision to file suit, ” in answer to Eugene’s question at deposition Belgum merely speculated that if he had known of negative tests, it “may” have affected his decision and he would have conducted further investigation. He did not positively declare he would not have filed suit, as Eugene implies.
Referring to a gynecologic oncology report from UCLA Medical Center, Eugene again contends Gina concealed a negative test. He cites to the report’s statement, “HPV diagnosed in 3/02. Further testing revealed no evidence of disease.” But the report states that Gina’s test results in March 2002 showed she had high risk strains of HPV. It states that although retests “were negative for HPV, ” “she was likely infected with HPV; however, as she was not sexually active with her partner anymore, she had probably developed an immune response and is likely not a carrier any longer.” Therefore, the document cited by Eugene refers to some unknown form of testing that may or may not have been a hybrid capture test or a Pap test that showed negative for HPV. We conclude Eugene has again failed to raised a triable issue of material fact. It is undisputed that Gina tested positive for HPV in a hybrid capture test, that she gave Belgum access to her medical records, and that he obtained them before he filed suit.
In his reply brief, Eugene refers to evidence including what he contends are excerpts from Gina’s deposition testimony that purported to show that Gina had retested three times for HPV with negative results. At the hearing on the second summary judgment motion, Gina successfully objected to the admission of that evidence on the basis that the evidence was not authenticated nor contained in Eugene’s opposition to Gina’s summary judgment motion, and Eugene does not challenge the court’s ruling in this regard in his briefs on appeal and has thus forfeited any claim of error here. In conjunction with this appeal, Eugene filed a reply appendix containing those documents, and Gina filed a motion to strike his reply appendix. We granted Gina’s motion to strike on March 23, 2011.
And Eugene’s argument that Gina failed to disclose facts to Belgum because “[n]o doctor ever told Gina that Eugene was the cause of the initial diagnosis of HPV” must also fail. Eugene simply does not show that Gina failed to disclose that a doctor told her Eugene could not have given her HPV or that she concealed the material facts of how she became infected with HPV.
We conclude there are no triable issues about Gina’s relying in good faith on the advice of Belgum after full disclosure of all relevant facts. Having so concluded, we need not, but shall briefly address Eugene’s further argument that he raised a triable issue about whether Gina initiated the suit with malice. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 875 [“If the court determines that there was probable cause to institute the prior action, the malicious prosecution action fails, whether or not there is evidence that the prior suit was maliciously motivated.”].)
2. There is no triable issue as to malice
Eugene argues that there was a triable issue about whether Gina instituted the suit with malice because the “lack of probable cause create[s] a fair inference of implied malice” and because “the lawsuit was filed in order to shake down Eugene for a large settlement because he ostensibly could afford it even though Gina was disease free.” We disagree.
The malice element of the malicious prosecution tort relates to the subjective intent of the defendant in initiating the prior action. (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 874.) “For purposes of a malicious prosecution claim, malice ‘is not limited to actual hostility or ill will toward the plaintiff. Rather, malice is present when proceedings are instituted primarily for an improper purpose.’” (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1407.) Improper purposes include, but are not limited to, those in which (1) the person bringing the suit does not believe that the claim may be held valid; (2) the proceeding is initiated primarily because of hostility or ill will; (3) the proceeding is initiated solely for the purpose of depriving the opponent of a beneficial use of his property; or (4) the proceeding is initiated for the purpose of forcing a settlement bearing no relation to the merits of the claim. (Ibid.)
Eugene argues that “Gina’s stated goal of coercing a $1,000,000.00 settlement from Eugene is concrete evidence of malice.” Pursuant to section 998, Belgum served an offer to compromise for $1 million two months after the underlying action was filed. In granting Gina’s motion for summary judgment, the trial court held that Gina had “ample reason to subjectively believe that it was [Eugene] who had infected her with HPV” and that “[Eugene] has failed to explain why, given [Gina’s] young age at the time of infection with an incurable virus, the potential effects of HPV on her health, her social life, etc., and the nature of her claims (which included a request for punitive damages as to each of her three causes of action), a settlement request of $1,000,000.00 was unreasonable (particularly in light of the fact that a plaintiff’s [section] 998 offer to a defendant is sometimes just a starting point for settlement negotiations).”
Nonetheless, Eugene contends that Gina’s telephone call to him in which he claims she stated that he “‘could easily afford to settle the case’” was sufficient evidence of malice because the complaint was filed and the demand was made after the three HPV tests that showed she was free of the disease. But as previously discussed, the three tests that Eugene claims were negative for HPV were Pap tests, which Rosenman opined could not reveal the existence of HPV.
Nor are we convinced by Eugene’s argument that Gina’s appeal of the judgment entered on Eugene’s successful motion for summary judgment in the underlying case or that her “elect[ion] not to oppose the summary judgment in the underlying case on its merits... is a clear indication that her claim against Eugene was a sham.” And Eugene’s account of the telephone conversation merely bolsters Gina’s advice of counsel defense. Eugene declared that when he pointed out that she “had no disease... [and had] sexual affairs with many other men including Joe F[.] before me, ” Gina replied, “‘my lawyer says none of that matters since I was the last one she had sex with before she was diagnosed with HPV.’”
We disagree with Eugene’s argument that the $1 million sum demanded had no relation to the merits of the claim. We also disagree with his contention that the trial court’s determination that $1 million was a reasonable starting point for settlement negotiations was speculative and that its characterization of Gina as a “helpless, unsophisticated young naïf whose life has been ruined” was refuted by evidence that she was “a party girl, ” by virtue of joining a USC sorority, traveling extensively abroad, attending dance clubs, and admitting to being sexually active from the age of 18. Eugene’s argument is conclusory, argumentative, and arbitrary.
C. The doctrine of law of the case does not require reversal
Eugene also contends that the doctrine of the law of the case requires reversal because we reversed the judgment entered after the trial court granted an earlier summary judgment motion brought by Gina. We disagree.
Under the doctrine of law of the case, “‘the decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.’” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 301.) Thus, the court in Bergman v. Drum (2005) 129 Cal.App.4th 11 held that the trial court erred in granting a motion for summary judgment where the appellate court had already determined that the plaintiff presented a prima facie case in support of her suit for malicious prosecution “unless the defendant submits to the trial court, in support of such motion, additional or different evidence that would, as a matter of law, conclusively negate plaintiff’s prima facie case.” (Id. at p. 18.) Eugene’s argument that Gina failed to present any substantially new evidence that conclusively entitles her to judgment as a matter of law fails. Here, as previously discussed, new evidence in the form of Gina’s declaration, Belgum’s deposition testimony, and Rosenman’s deposition testimony conclusively negates Eugene’s prima facie case.
We conclude that the trial court did not err in granting Gina’s second motion for summary judgment.
DISPOSITION
The judgment is affirmed. Gina F. is entitled to costs on appeal.
We concur: ROTHSCHILD, J., CHANEY, J.