Opinion
A146164
08-01-2018
R. STEPHEN GOLDSTEIN, Plaintiff and Respondent, v. PATRICIA DOBASHI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. CGC09493095)
This is the third appeal in litigation between the parties arising from a theft of jewelry from Patricia Dobashi. The first appeal affirmed the dismissal of Dobashi's suit for conversion and other claims against R. Stephen Goldstein. The second affirmed the denial of Dobashi's motion to dismiss the complaint in Goldstein's suit for malicious prosecution. In the present appeal from the judgment in Goldstein's favor on his malicious prosecution claim, Dobashi contends the trial court committed prejudicial error in taking judicial notice of and relying upon our opinion in the second appeal. We affirm the judgment.
BACKGROUND
Goldstein and Dobashi were involved in a romantic relationship in 2003 and again from September 2004 through May 2006. Around September 2003, Dobashi told Goldstein that four rings had been stolen from her residence. She suspected they had been taken by Goldstein's former girlfriend, Helene Truly Osuna, whom Dobashi believed had been stalking her. In November 2003, Dobashi reported to the San Francisco police that three rings and a charm bracelet, with a total value of $123,000, had been stolen. Dobashi admitted at trial that she lied about the value of the jewelry, which was in fact around $16,000. She later found the most valuable item, a $15,000 charm bracelet, in the back of her jewelry drawer.
In the fall of 2005, Dobashi asked Goldstein to get her jewelry back from Osuna and he had a conversation with Osuna about it. About a month later, a box containing jewelry appeared in Goldstein's mailbox, wrapped in brown paper with no return address or note. He gave the jewelry to Dobashi.
In July 2006, after the parties' relationship ended for good, Dobashi claimed that numerous pieces of jewelry had been stolen, not just the items she had reported to the police in 2003. In October 2006, Dobashi sued Goldstein and Osuna, alleging a cause of action for conversion against both defendants, causes of action for breach of contract and fraud against Goldstein, and a cause of action for trespass against Osuna. In what the trial court called a "key passage" of the complaint, Dobashi alleged that Goldstein "cooperated with Osuna to steal [Dobashi's] jewelry and therefore became a co-actor with Osuna in carrying out the theft." Dobashi claimed the value of the missing jewelry was $250,000.
The cause of action for breach of contract alleged that Goldstein promised to recover or replace the missing jewelry if Dobashi did not pursue Osuna, that Dobashi accepted this offer and did not pursue Osuna, and that Goldstein "only returned three rings which were a small part of the missing jewelry and has refused to return or replace the rest." The cause of action for fraud alleged that Goldstein represented he could recover the jewelry from Osuna or would replace it, and represented he had no relationship with Osuna as of October 1, 2004, but in fact knew Osuna either no longer had the jewelry or would not return it, Goldstein did not intend to replace it, and Goldstein had an ongoing relationship with Osuna "of some type."
Several rounds of demurrers and amended complaints followed. Dobashi's first amended complaint alleged a cause of action for conversion and conspiracy to convert against both defendants and causes of action for breach of contract and fraud against Goldstein. After Goldstein demurred and moved for sanctions, Dobashi dismissed the causes of action for conversion/conspiracy and fraud. The second amended complaint alleged the claim for conversion only against Osuna, and alleged claims for breach of contract against Goldstein and for trespass against Osuna. The third amended complaint alleged causes of action for conversion and trespass against Osuna and a cause of action for negligence against Goldstein, based on his having allowed Osuna access to his key to Dobashi's home. The trial court sustained Goldstein's demurrer to the third amended complaint without leave to amend and dismissed the action, Dobashi appealed and Division Five of this court affirmed the judgment in an opinion filed on June 11, 2009.
On October 1, 2009, Goldstein filed a complaint for wrongful use of civil proceedings (malicious prosecution) and abuse of process against Dobashi. She answered the complaint and moved to strike it pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute. Her motion was denied as to the first cause of action and granted as to the second. Dobashi appealed. This court affirmed, concluding that "Goldstein made a sufficient prima facie showing of a probability of prevailing on his malicious prosecution claim." (Goldstein v. Dobashi (Sept. 11, 2012, A129746) [nonpub. opn.] (Goldstein).) The remittitur, with a copy of the opinion, was filed in the superior court on November 14, 2012.
Goldstein also sued Michael Miller, the attorney who had initially represented Dobashi, and Charles Bourdon, who replaced Miller and filed the first amended complaint. The trial court granted Bourdon's anti-SLAPP motion to strike and Goldstein appealed, then agreed to dismiss the appeal and dismissed his claims against Bourdon. He dismissed his claims against Miller before effecting service of the complaint.
We rejected Dobashi's contentions that Goldstein failed to make a prima facie showing that the prior action terminated in his favor or that Dobashi brought the case without probable cause and with malice. (Goldstein, supra, A129746.) As to the element of favorable termination, Dobashi's argument was based on her having voluntarily dismissed two of the causes of action. (Ibid.)
The case proceeded to trial in November 2014, Dobashi appearing in propria persona Goldstein requested judicial notice of the opinion on the appeal in A129746, as well as a recording of oral argument and transcript of the recording, stating that the items were relevant because the opinion established law of the case and the statements of Dobashi's attorney at oral argument "may also constitute binding judicial admissions."
Dobashi acknowledged at trial that when she filed her suit against Goldstein, she did not believe he had conspired with Osuna to steal her jewelry, and that she had stated in a deposition in 2010 that when she filed the suit, she did not think Goldstein conspired, planned or carried out the theft with Osuna. She testified that she authorized the lawsuit to be filed after reading the complaint. She also testified that Osuna had admitted to her having stolen the jewelry and had told her that Goldstein "knew everything about it."
The trial court issued a tentative statement of decision on January 20, 2015. Addressing the elements of a claim for wrongful use of civil proceedings, the court found that (1) Dobashi conceded she was actively involved in bringing and continuing a lawsuit; (2) the Court of Appeal's finding in Goldstein that the lawsuit terminated in Goldstein's favor was binding as law of the case; (3) no reasonable person in Dobashi's circumstances would have believed there were reasonable grounds to bring the suit against Goldstein, as demonstrated most crucially by Dobashi's testimony that when she filed suit alleging that Goldstein "cooperated with Osuna to steal [her] jewelry and therefore became a co-actor with Osuna in carrying out the theft," she did not think or believe he had stolen, planned to steal or conspired with Osuna to steal the jewelry; (4) Dobashi acted primarily for a purpose other than succeeding on the merits of her claim in that she "wanted to exert (in her words) 'psychological pressure upon Goldstein,' " her purposes "included venting displeasure over Goldstein's relationship with Osuna," and she "had the 'purpose of extracting a settlement'—$250,000—with 'no relation to the merits of the case' "; (5) Goldstein suffered economic damages of $139,427.65, the amount spent to defend against Dobashi's suit; and (6) Dobashi was a substantial factor in causing Goldstein's harm. The court found that Dobashi failed to prove her affirmative defense of reliance on counsel in that she did not prove she made a "full and honest disclosure of all the important facts known to her to the attorney," most importantly by presenting no evidence "of disclosing her beliefs that Goldstein had not stolen, planned to steal or conspired to steal her jewelry."
The trial court subsequently issued a revised tentative decision, modified largely in response to Dobashi's argument, in her objections to the tentative decision, that the court had improperly focused on her subjective belief in finding her suit against Goldstein lacked probable cause. The revised tentative decision discussed two "independently sufficient" grounds for concluding no reasonable person in Dobashi's circumstances would have believed there were reasonable grounds for the suit. The first was Dobashi's concession, "based on the extensive facts and knowledge she amassed before suing," that "she 'did not believe that Goldstein was involved in the theft.' " The court described this evidence as "devastating" to Dobashi and explained that Dobashi's argument that her subjective belief was irrelevant to the probable cause test failed to recognize that the " 'reasonable person' " in that test is " 'in defendant's circumstances[,]' " with the knowledge of facts Dobashi had and "the belief she drew from those facts." Second, the court found that Dobashi's lawsuit was not " 'legally tenable' under an 'objective standard.' " The court noted that our opinion in Goldstein "found 'as a matter of law' on facts largely consistent with those proved at trial, that Dobashi lacked probable cause for her counts against Goldstein for conversion, conspiracy to covert, and fraud" (fn. omitted) in that the claims failed "even taking Dobashi's evidence as true."
The revised tentative decision also added to its discussion of Dobashi's defense of reliance on counsel that Dobashi's first attorney did not recall her disclosing her belief that Goldstein was " 'not involved in the theft' " and her second attorney testified, " 'I don't know what she believed at any given time' "; this court, in rejecting the advice of defense counsel in our opinion in Goldstein stated that the fact finder at trial might find Dobashi was not credible in claiming she told her attorneys the truth; and the trial court found she was not credible on this point based on her attorneys' testimony, the court's conclusion after observing the attorneys' testimony that neither would have filed the complaints they filed if Dobashi had told them the truth; Dobashi's admitted lies about important matters; and the court's view that Dobashi was "often evasive and lacking in candor" during her testimony at trial. After a hearing on the tentative decision, the court filed its statement of decision, which differed from the tentative only in adding that Goldstein was the prevailing party, and entered judgment for Goldstein.
Dobashi, represented by new counsel, filed a motion for a new trial. She argued that the trial court "made a fundamental, prejudicial error" in taking judicial notice of "the determination and findings" in our opinion in Goldstein, in that Code of Civil Procedure section 425.16 "specifically prohibits such consideration of the determination or findings in the appellate opinion, because it adversely affects the parties' rights to a fair and impartial trial." Denying the motion, the trial court held there was no error, as section 425.16, subdivision (b)(3), is concerned with trial court determinations, not those of appellate courts, section 425.16 does not address judicial notice, and the court did not take judicial notice of the truth of this court's factual determinations, only our determinations of law. The court additionally found that Dobashi forfeited any error by failing to timely object that section 425.16 prohibited taking judicial notice of the opinion on the prior appeal; that there was no prejudice in that the court could have cited the earlier trial court order sustaining Goldstein's demurrer to Dobashi's suit and the Division Five opinion affirming that order (which were in evidence without objection) to show that the underlying suit terminated favorably to Dobashi and that she lacked probable cause for filing it; and that, with respect to probable cause, Dobashi did not challenge the alternative independent ground stated in the statement of decision.
Further statutory references will be to the Code of Civil Procedure unless otherwise indicated.
Dobashi filed a timely notice of appeal.
DISCUSSION
On this appeal, Dobashi argues that the trial court erred in taking judicial notice of "the contents" of our opinion in Goldstein because section 425.16 prohibited "taking those facts into account in reaching a liability determination in Goldstein's case," and in taking judicial notice after the close of evidence without giving the parties an opportunity to object or argue.
Section 425.16, subdivision (b)(1), provides: "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 Constitution or the 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.
"(2) 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.
"(3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding."
In Bergman v. Drum (2005) 129 Cal.App.4th 11 (Bergman), the primary case upon which Dobashi relies, the trial court denied a section 425.16 anti-SLAPP motion filed by the defendant in a malicious prosecution suit and the appellate court affirmed, holding that there was evidence from which the trier of fact could find in favor of the plaintiff on all three elements of the cause of action. (Bergman, at p. 13.) The trial court then granted the defendant's summary judgment motion. (Ibid.) Reversing, the appellate court agreed with the plaintiff's argument that the prior appellate decision finding she had established a prima facie case for malicious prosecution was law of the case that precluded summary judgment for the defendant. (Id. at pp. 14-15.)
"Under the law of the case doctrine, when an appellate court ' "states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case's] subsequent progress, both in the lower court and upon subsequent appeal . . . ." ' (People v. Barragan (2004) 32 Cal.4th 236, 246, quoting Kowis v. Howard (1992) 3 Cal.4th 888, 893.) Bergman explained that because the standards for determining the merits of a defendant's anti-SLAPP motion to strike a complaint and a defendant's motion for summary judgment both seek to determine whether the plaintiff's opposition presents a prima facie case, the first appellate determination that the plaintiff had presented a prima facie case for malicious prosecution necessarily established that the evidence presented by the parties on the motion to strike raised a triable issue of material fact. (Bergman, supra, 129 Cal.App.4th at p. 18.) "This determination is sufficient to defeat a subsequent motion for summary judgment 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." (Ibid.)
Of relevance here, the Bergman court rejected the defendant's contention that application of the doctrine of law of the case was precluded by section 425.16, subdivision (b)(3). "Subdivision (b)(3) of section 425.16 states: "If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, . . . and no burden of proof or degree of proof otherwise applicable shall be affected by the determination." (§ 425.16, subd. (b)(3), italics added.) "The obvious intent of this subdivision of section 425.16 is that a decision by a court that a plaintiff has presented a prima facie case in response to a defendant's section 425.16 motion to strike should not be used as proof that a verdict in the plaintiff's favor should be rendered in a later dispositive or potentially dispositive portion of the case, such as at trial or a motion by the plaintiff for summary judgment. [¶] This provision in section 425.16 does not preclude application of the doctrine of law of the case here because, in the section 425.16 motion, the only thing established was the procedural conclusion that plaintiff had presented a prima facie case which entitled her to go forward. In the absence of Drum's presentation of additional or different factual or legal matter, he is not entitled to reargue the proposition that plaintiff has not presented sufficient evidence to go before a trier of fact. Clearly, our determination in Bergman I will have no impact on the trial of this matter where plaintiff will have to prove her case for malicious prosecution by a preponderance of the evidence. Upon the commencement of the trial, the impact of the law of the case doctrine will simply disappear." (Bergman, supra, 129 Cal.App.4th at pp. 20-21.)
Appellant relies upon the last line of the above quote to argue that law of the case does not apply in the trial of an action after the denial of an anti-SLAPP motion has been affirmed, and that the trial court here "improperly admitted the anti-SLAPP opinion and findings into evidence on the merits." Dobashi reads the Bergman court's statement far too broadly. In Bergman, the "impact" of the law of the case doctrine would "disappear" upon commencement of trial because the only point established as law of the case—that the plaintiff demonstrated a prima facie case of malicious prosecution—would be irrelevant at trial, where she would have to prove the elements of her claim by a preponderance of the evidence. Bergman had no reason to comment upon the applicability of the law of the case doctrine where an appellate court has established principles of law that are relevant at a trial on the merits, and should not be read as suggesting the doctrine does not apply in that situation.
Dobashi's contention that section 425.16 precluded the trial court from taking judicial notice of an appellate decision in the same case borders on the absurd. As a result of Dobashi's appeal from the denial of her anti-SLAPP motion, trial could not proceed until this court reviewed the trial court's decision. Our opinion affirming the denial of Dobashi's motion, which was filed in the trial court with the remittitur when our decision became final, was the vehicle by which the trial court was allowed to proceed—in accordance with any legal principles established by our decision. Judicial notice of records of a court of this state is compulsory if a party requests it, gives the opposing party sufficient notice to allow that party to prepare to meet the request and furnishes the court with sufficient information to enable it to take judicial notice of the matter." (Evid. Code, §§ 352, subd. (d)(1), 353.) Goldstein served Dobashi with his request for judicial notice on the first day of trial. She did not object during trial that the request was precluded by section 425.16; the issue was raised only in her new trial motion. Nothing in the language of section 425.16 or any precedent of which we are aware suggests that a trial court may, let alone must, ignore the contents of an opinion of the appellate court reviewing its decision on an anti-SLAPP motion.
Goldstein requested judicial notice of a recording of oral argument in this court, a transcript of the proceedings and a copy of our opinion pursuant to Evidence Code section 452, subdivision (d)(1), which allows discretionary judicial notice of "[r]ecords of . . . any court of this state" and section 453, which makes such judicial notice compulsory if "a party requests it and . . . (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and [¶] (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter."
The court noted at the hearing on Dobashi's new trial motion that it had not listened to the recording of oral argument and had "no idea . . . what went on there."
At the hearing on the revised tentative decision, when Dobashi raised a question about the trial court's discussion of our decision in Goldstein regarding the issue of termination in Goldstein's favor, the court stated that our conclusion was "law of the case" and that it had "taken judicial notice under Evidence Code sections 415 and 452. Dobashi objected that "the appellate court did not establish that Mr. Goldstein would prevail at trial and that this was the law of the case . . . that is [what] we are here at trial to determine" The trial court acknowledged, "[i]t is somewhat predictive, what they say on an anti-SLAPP motion. . . . [W]hat they said is, 'We find he is probably going to win.' [¶] Now, you are right, it's possible the trial—that the trial that happened here could have happened and he wouldn't have won, but he did." Subsequently, at the hearing on Dobashi's new trial motion, in discussing whether Dobashi had raised the section 425.16 objection during the trial, the court noted the above law of the case objection and said, "I went on to agree with that, as I say in the tentative. I agree totally that just because judicial notice was taken doesn't establish that. Rather, the plaintiff here, Mr. Goldstein, had to prove it by the preponderance of the evidence."
Dobashi contends the trial court violated her right to due process by taking judicial notice of our opinion on its own motion, after the close of evidence, without giving the parties notice and a reasonable opportunity to address the propriety of that action. Dobashi suggests Goldstein may not have filed a request for judicial notice, noting that the request did not appear in the register of actions until long after the trial had concluded. The request for judicial notice is file-stamped July 14, 2015. Goldstein stated in his opposition to Dobashi's new trial motion that although he served and submitted the request for judicial notice to the court on the first day of trial, neither this nor his other pretrial documents had been docketed, "apparently missed in the transition from paper to electronic filings. Goldstein is electronically filing those documents today so that the trial record will be complete." The request for judicial notice is dated November 10, 2014 (the first day of trial), and the proof of service reflects both personal service and service by email on November 10, 2014. Goldstein's trial brief, dated November 10, 2014, and indicating November 10, 2014, as the trial date, is also file-stamped July 14, 2015. --------
Appellant is correct that a trial court cannot take judicial notice of the truth of another court's statements of fact. (Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1050-1051; Gilmore v. Superior Court (1991) 230 Cal.App.3d 416, 418.) But the court did not do so here.
" '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].' " (Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 458, quoting Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50.) As the trial court noted, Dobashi conceded the first element. The second was established by proof that Dobashi's suit against Goldstein ended in a judgment in Goldstein's favor that was affirmed on appeal. Dobashi attempted to avoid this conclusion by arguing in her appeal from the denial of her anti-SLAPP motion that her voluntary dismissal of two of the causes of action in her complaint meant they were not terminated in Goldstein's favor. Our decision in Goldstein rejected her argument. This was a conclusion of law, not fact, and it was binding on the trial court as law of the case. Dobashi does not argue on this appeal that the underlying litigation did not terminate in Goldstein's favor.
With respect to probable cause, the trial court found that Dobashi brought the underlying action without probable cause for two reasons, each of which it considered sufficient to independently support judgment for Goldstein. The first was that Dobashi conceded that at the time she filed her suit, she did not believe Goldstein was involved in the theft, yet she alleged that Goldstein " 'cooperated with Osuna to steal plaintiff's jewelry and therefore became a co-actor with Osuna in carrying out the theft.' " Referring to this as "devastating" evidence against Dobashi, the trial court concluded that no reasonable person in Dobashi's circumstances—that is, with "the extensive facts and knowledge she amassed before suing" and "the belief she drew from those facts"—would have believed there were reasonable grounds to bring the lawsuit against Goldstein. This conclusion was expressly based on Dobashi's trial testimony, a statement in her objections to the trial court's tentative decision, and evidence she submitted at trial—and, therefore, not on anything in our opinion in Goldstein.
The trial court's second ground for finding Dobashi sued Goldstein without probable cause was that the suit was not " 'legally tenable' under an 'objective standard.' " Here, the trial court referred to "findings" in Goldstein that Dobashi lacked probable cause for her counts of conversion, conspiracy to convert and fraud—as to the alleged conversion, because even if her evidence was true, it did not show Goldstein had the intent required for conversion, and as to the alleged fraud because no legal duty arose from the promise Dobashi alleged.
The trial court appears to have misunderstood our opinion on this point: While the statement of decision says Goldstein held that Dobashi lacked probable cause for these counts "as a matter of law," our actual holding was simply that Dobashi did not establish probable cause "as a matter of law"—which is what she would have had to do in order to defeat Goldstein's prima facie showing and prevail on her anti-SLAPP motion to dismiss Goldstein's complaint. (Goldstein, supra, A129746.) If the trial court mistakenly understood itself to be bound by a determination in Goldstein that Dobashi's suit lacked probable cause, however, its error was not prejudicial. The trial court stated that the facts established by the evidence on the motion were "largely consistent" with those proved at trial and, when inconsistent, "the facts proved at trial were even worse for Dobashi." In light of this observation, there clearly is no reasonable probability the trial court would have found Dobashi had probable cause for her suit if it had taken our prior opinion as holding that Dobashi failed to conclusively overcome Goldstein's prima facie case. More fundamentally, there was no prejudice because, entirely independent of our prior opinion, the court found lack of probable cause based on Dobashi's concession at trial that she did not believe Goldstein was involved in the theft.
The trial court found that Goldstein established the element of malice based on Dobashi's trial testimony and pleadings, without reference to our prior opinion.
Finally, in rejecting Dobashi's affirmative defense of reliance on counsel, the court noted our statement in Goldstein that the fact-finder at trial "might well 'find Dobashi not credible as to her claims that she told her attorneys the truth.' " The trial court continued, stating it "does so find" and elaborating its reasons—all of which are based on the trial, not our decision: "Dobashi's attorneys testified to no recollection of such a significant disclosure; (2) having watched the attorneys testify, the court finds that neither would have filed the complaints they filed had Dobashi told them the truth; (3) Dobashi concedes she has repeatedly lied about important matters, most notably to San Francisco police . . .; and (4) observing Dobashi on the witness stand, the court found her often evasive and lacking in candor."
In short, we find no prejudicial error.
DISPOSITION
The judgment is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.