Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from an order of the Superior Court of San Diego County No. GIC870917, Joan M. Lewis, Judge.
O'ROURKE, J.
Linda K. Gonzalez and her attorney, John J. Machado (respondents) sued Hector D. Hernandez (Hernandez) and his attorney, Judy R. Bailey (Bailey), for malicious prosecution. Bailey appeals from an order denying her special motions to strike brought under Code of Civil Procedure section 425.16, the "anti-SLAPP" statute. Bailey contends: (1) she did not maliciously prosecute the posttrial actions, which were not independent actions but rather subsidiary to the wrongful death action; and (2) respondents failed to show she lacked probable cause to prosecute an action pursuant to Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801 (Ruttenberg). We affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
The Ruttenberg court held that omitted heirs are necessary parties and "plaintiff heirs have a mandatory duty to join all known omitted heirs in the 'single action' for wrongful death. If an heir refuses to participate in the suit as a plaintiff, he or she may be named as a defendant so that all heirs are before the court in the same action." (Id. at p. 808.)
FACTUAL AND PROCEDURAL BACKGROUND
On May 13, 1996, Phillip Hernandez — son of Linda Gonzalez and Hector Hernandez — died of an asthma attack while at school. Hernandez was aware of Phillip Hernandez's death. In May 1997, Linda Gonzalez applied to the Hanford Elementary School District (the school district) for permission to present a late wrongful death claim under Government Code sections 911.4 and 911.6. The school district initially denied Gonzalez permission, but the superior court granted Gonzalez's petition for relief in December 1997.
In January 1998, Gonzalez filed a wrongful death action and joined Hernandez — from whom she was estranged — as a nominal defendant. Hernandez made general appearances at the case management conferences in pro per. Hernandez never applied to the school district for permission to present a tort claim or sought permission to present a late claim.
A default was entered against Hernandez, but it was subsequently set aside.
In April 1999, a jury awarded Gonzalez $8.9 million. The special verdict form did not mention Hernandez. The school district filed a motion for a new trial, arguing the damages were excessive. The trial court granted the motion, conditioned upon Gonzalez's accepting a remittitur to $2.25 million. Gonzalez appealed, and the court of appeal affirmed the new trial order and granted Gonzalez's request to accept the remittitur and avoid retrial.
In July 1999, Hernandez filed several posttrial actions that were consolidated: (1) a motion requesting an apportionment of fifty percent of the jury award based on his parental status; (2) a motion "to quash service of summons and to vacate and set aside default judgment;" (3) a proposed answer to Gonzalez's complaint against the school district; (4) a proposed cross-complaint against Gonzalez and her attorneys for legal malpractice.
In September 1999, the trial court ruled as follows regarding the motion to quash service of summons and set aside the default: "[I]f Mr. Hernandez is an heir wrongfully omitted as a plaintiff from the wrongful death action, his present motions are not the proper means by which to seek relief. An independent action for damages is the appropriate venue to determine the validity of this claim." The trial court struck Hernandez's proposed answer and proposed cross-complaint because they were untimely and stated, "Judicial notice is also taken that the time permitted Mr. Hernandez to file a complaint against the tortfeasor in the wrongful death proceeding has long since expired. Any remedy, if any,[sic] that may exist therefor[e] also lies elsewhere." (Emphasis added.) Bailey and Hernandez did not appeal this ruling.
In July 1999, Hernandez sued Gonzalez and her attorneys in a Ruttenberg-type action. After successive demurrers, Hernandez filed the operative fifth amended complaint in January 2001, alleging all defendants intentionally failed to join him as a plaintiff in the wrongful death action in violation of sections 376, subd. (a), 377.10, and 382; committed fraud, deceit, intentional misrepresentation and conspiracy; and intentionally violated Hernandez's civil and constitutional rights to due process and equal protection by excluding him from the proceedings against the school district. The complaint alleged against Gonzalez alone a cause of action for breach of an oral contract to get an attorney to represent both Gonzalez and Hernandez in a wrongful death lawsuit; and sought from Gonzalez a constructive trust and accounting and half of the award.
In January 2002, respondents moved for summary judgment, arguing that under Government Code sections 815 and 945.4, Hernandez waived all claims against the school district because, "Hernandez never filed a Government Tort Claim or Petition for leave to file a late claim. Accordingly, any rights Hernandez had against the [s]chool [d]istrict were extinguished and forever lost on May 13, 1997. This date is well before [Gonzalez's attorney] committed any of the alleged wrongful acts set forth in the Complaint, to wit, failing to properly serve Hernandez with the wrongful death complaint and naming Hernandez as a defendant instead of a plaintiff, without first making a demand on Hernandez to be joined as a plaintiff. Because Hernandez did not have any rights against the [s]chool [d]istrict by the time of [Gonzalez's attorney's] alleged wrongdoing, his claims against [Gonzalez's attorney] must fail as a matter of law."
In March 2002, the trial court granted summary judgment, ruling, "Each heir has a personal and separate cause of action and a separate, rather than a joint interest. . . . [¶] In addition, when the defendant is a governmental entity, each wrongful death claimant must file their own tort claim. . . . A person unnamed in the governmental claim may not seek relief from the claims filing requirements on the theory that the claim is derivative of another person's claim. . . . Failure to file a governmental claim is a jurisdictional defect." The trial court added, "Here, plaintiff did not present evidence of his damages at the wrongful death trial and he may not simply claim a constructive trust over such proceeds."
The court also ruled, "The alleged statement that if an attorney is retained, the attorney will be retained for both [Gonzalez and Hernandez] is not an enforceable contract. It lacks consideration, it is too vague for the court to enforce and it is not enforceable as a matter of public policy. Any fraud in the pleadings was privileged . . . . No extrinsic fraud (as an exception to the litigation privilege) exists due to the fact that any reliance by plaintiff on Gonzalez's statement was unreasonable as a matter of law. In addition, as a matter of law, plaintiff was negligent in failing to protect his own rights under the material undisputed facts of this case."
In September 2002, Hernandez filed a notice of lien on Gonzalez's award against respondents and the school district. Gonzalez opposed the notice of lien and moved for sanctions. In October 2002, Hernandez withdrew the notice of lien.
In November 2002, Hernandez filed a motion to "amend complaint; to set aside default and/or to divide award." On December 4, 2002, the trial court denied the motions to amend the complaint and or to divide the award because they were untimely. The trial court set aside the default, but stated that its doing so, "[would] avail Mr. Hernandez nothing in regard to his two other motions. Under California law there may be but one action for the wrongful death of an individual. That action has been tried and appealed and the appellate court has issued its remittitur. Except as to the issue of the motion to tax costs, the ruling on which may still be subject to appeal, this case is over." (Emphasis added.) The trial court's written ruling admonished Hernandez for repeatedly bringing frivolous motions: "In view of Mr. Hernandez' repeated unsuccessful efforts to obtain the same relief on the same grounds, and in light of nominal defendant Hernandez's latest 'Notice of Intention to move for 1) a New Trial; 2) a New Trial on the issue of damages; 3) To Reopen the Case and/or 4) to Vacate Judgment' received by the court this day, it is appropriate to call the attention of Mr. Hernandez and his attorney the power of the court to issue monetary sanctions for bringing frivolous motions."
On December 4, 2002, Hernandez filed a motion to vacate the jury award, and an order granting a new trial, including on the issue of damages, claiming Gonzalez and her attorneys "negligently or intentionally failed to comply with the requirements of [Code of Civil Procedure] sections 376, subd. (a) and 382; improperly named [Hernandez] as a nominal defendant in this action." Gonzalez responded by moving for sanctions "and other relief for filing frivolous motions."
On February 3, 2003, the trial court denied the "motion for new trial, new trial as to damages, to reopen case and/or vacate judgment," stating, "This motion repeats the arguments made in September of 1999, and again in December of 2002. Hernandez again asks that the wrongful death action be reopened to allow the issue of his statutory damages caused by the injury to and loss of his minor son be alleged and adjudicated by a jury. However, as previously ordered, the remedy for an alleged wrongful omission from a wrongful death action is a separate lawsuit as discussed in [Ruttenberg, supra,53 Cal.App.4th 801]."
On February 24, 2003, the trial court granted Gonzalez's motion and ordered $10,659 in sanctions jointly against Hernandez and Bailey. The trial court ruled, "Defendant Hernandez filed a Ruttenberg claim against plaintiff and her counsel and such lawsuit . . . is presently on appeal from a summary judgment entered against Hernandez. Summary judgment was entered against Hernandez because: 1) no governmental claim against the school district had been filed on his behalf; 2) neither plaintiff nor her attorneys had a legal obligation to file such a governmental claim; and 3) since the wrongful death judgment did not name him, he could not simply demand that the award be divided. Hernandez may disagree with these legal findings, but his remedy is now at an appellate level. His repeated attempts to pursue a wrongful death action, or to obtain a share of the judgment entered in favor of [Gonzalez] is vexatious and wholly without merit. Hernandez was repeatedly advised that the motion for new trial was untimely under Code of Civil Procedure section 659 and new trial would not be ordered in any event due to his failure to file a governmental tort claim, which is a jurisdictional defect. [¶] Hernandez's refusal to withdraw the motion for a new trial despite repeated advisement that his remedy is on appeal . . . is the basis of the sanction award under Code of Civil Procedure section 128.7." (Emphasis added.)
In September, 2005, the Fifth District Court of Appeal affirmed the grant of summary judgment, ruling that even assuming Hernandez was illegally omitted from the wrongful death action, the undisputed evidence established that Hernandez did not file the required Claims Act petition to protect his own interests; therefore, he could not have been legally damaged by his omission from the wrongful death action. Accordingly, Hernandez could not prove the harm element of his allegations of fraud, conspiracy and statutory based causes of action because actual damage is a necessary element of each of these causes of action and the undisputed evidence established that Hernandez had no such damages as a matter of law.
Respondents in the underlying malicious prosecution action brought a motion for judicial notice of the appellate court's opinion, which the trial court granted. We grant respondents' motion to augment the record on appeal filed April 11, 2008. (Cal. Rules of Court, Rule 8.155, subd. (a); Hansen v. Hansen (2003) 114 Cal.App.4th 618, 621.) We deny appellants' June 16, 2008 motion to augment the record on appeal or, in the alternative, request for judicial notice of official records required by Government Code section 53051. These records are not material to our resolution of this appeal.
The court of appeal, in a second opinion, affirmed the trial court's December 4, 2002 order regarding Hernandez's postjudgment motions to (1) set aside the default entered against Hernandez, (2) amend the complaint to enable Hernandez to participate in the judgment, and (3) to divide the judgment equally between Gonzalez and Hernandez under section 376, subdivision (a), and the trial court's and February 3, 2003 orders denying the motion for a new trial on damages, a motion to reopen the case, and a motion to vacate the wrongful death judgment, and the order sanctioning Hernandez for filing frivolous motions that duplicated motions filed in September 1999 and December 2002. The Court of Appeal relied on Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 765 and ruled Hernandez was not entitled to a portion of the jury award under Code of Civil Procedure sections 376, subdivision (a), 377.61, 383, 384 and Probate Code section 6402. The sanctions order as to Bailey was affirmed but the sanctions levied against Hernandez were struck.
On August 14, 2006, respondents sued Hernandez and Bailey for maliciously prosecuting three posttrial actions as follows: (1) the July 1999 proposed answer and cross-complaint, motions seeking an apportionment of the jury award to Hernandez, and the notice of lien; (2) the November 2002 motion to "amend complaint; to set aside default and/or to divide award;" and (3) the December 4, 2002 new trial motion.
On December 14, 2006, Bailey filed anti-SLAPP motions against Gonzalez and her attorneys under section 425.16. Bailey asserted the posttrial motions and the notice of lien that she filed did not provide a basis for a malicious prosecution action because they "could not be brought without the existing default and wrongful death judgment and accordingly, were not independent, distinct proceedings." Moreover, "none of the motions filed by BAILEY were terminated on the merits in favor of GONZALEZ."
The trial court denied the anti-SLAPP motion, ruling, "As to all claims in the Ruttenberg action, the undisputed evidence demonstrates that Hernandez did not file a government tort claim, a prerequisite for obtaining any recovery against the underlying defendant school district. . . . In the absence of compliance with this requirement, Hernandez's claims against the school district lacked merit and, therefore, Hernandez could not demonstrate he had been damaged." The trial court also found that respondents presented evidence from which malice could be inferred.
DISCUSSION
I.
Bailey contends, "all of [her] motions i.e., to apportion the existing wrongful death award pursuant to statute, for leave to amend and for new trial/vacate the judgment once Hernandez' default was set aside, did not have a single indicia of an independent action . . . [but rather] constituted the continuation of an existing proceeding seeking remedies incidental to the judgment obtained."
Section 425.16, the anti-SLAPP statute, provides in relevant part: "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." (§ 425.16, subd. (b)(1).)
Under this statute, the party moving to strike a cause of action has the initial burden to show that the cause of action "aris[es] from [an] act . . . in furtherance of the [moving party's] right of petition or free speech." (§ 425.16, subd. (b)(1).) Once that burden is met, the burden shifts to the opposing party to demonstrate the "probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1); Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67) To satisfy this prong, the plaintiff must demonstrate that the complaint is both 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. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741.)
We review de novo the trial court's rulings on a motion to strike under section 425.16 by conducting an independent review of the entire record. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) We do not reweigh the plaintiff's evidence, but simply determine whether the plaintiff has made a prima facie showing of facts necessary to establish its claim at trial. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 673.)
For respondents to prove Bailey's post trial motions constituted malicious prosecution, they must show a termination of the wrongful death lawsuit in respondents' favor, lack of probable cause to bring or continue to prosecute the action, and malice. Probable cause depends on whether any reasonable attorney would have thought the claim tenable. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 885-886; (Zamos v. Stroud (2004) 32 Cal.4th 958, 965, 970-971.) "[T]he probable cause element calls on the trial court to make an objective determination of the 'reasonableness' of the defendant's conduct, i.e. to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable. The resolution of that question of law calls for the application of an objective standard to the facts on which the defendant acted." (Sheldon, supra,at p. 878.)
For respondents to prove Bailey's post trial motions constituted malicious prosecution, they must show a termination of the wrongful death lawsuit in respondents' favor, lack of probable cause to bring or continue to prosecute the action, and malice. (Zamos, supra,32 Cal.4th at p. 965.)
Bailey's contention that the posttrial motions were not independent actions, but rather subsidiary to the wrongful death lawsuit, requires us to determine whether that lawsuit was terminated on the merits, and whether the posttrial motions were merely ancillary to the wrongful death suit. (Ross v. Kish (2006) 145 Cal.App.4th 188, 198.)
This court has explained the specific nature of claims by each plaintiff in a wrongful death action: "A cause of action for wrongful death is a statutory claim [citation] that compensates specified heirs of the decedent for losses suffered as a result of a decedent's death. [Citation.] Any recovery is in the form of a lump sum verdict determined according to each heir's separate interest in the decedent's life [citation], with each heir required to prove his or her own individual loss in order to share in the verdict. [Citations.] Because a wrongful death action compensates an heir for his or her own independent pecuniary losses, it is one for 'personal injury to the heir.' [Citations.] Thus, in a wrongful death action the 'injury' is not the general loss of the decedent, but the particular loss of the decedent to each individual claimant. [¶] A wrongful death action is considered joint, single and indivisible, meaning that all heirs should join in a single action and there cannot be a series of suits by heirs against the tortfeasor for their individual damages. [Citation.] 'The action is joint only insofar as it is subject to the requirement that all heirs should join in the action and that the damages awarded should be in a lump sum.' [Citation.] As explained by our high court, the wrongful death statute 'is a procedural statute establishing compulsory joinder and not a statute creating a joint cause of action.' [Citation.] Accordingly, each heir has a 'personal and separate cause of action.' " (San Diego Gas & Elec. Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1550-1551.)
The California Supreme court stated in Bertero v. National General Corp. (1974) 13 Cal.3d 43: "[C]ase and statutory law recognize that a cross-pleading creates an action distinct and separate from an initial pleading. Dismissal of the complaint, for instance, does not affect the independent existence of the cross-complaint or counterclaim." (Id., at p. 52.) The court also stated: "[A] cause of action for malicious prosecution lies when predicated on a claim for affirmative relief asserted in a cross-pleading even though intimately related to a cause asserted in the complaint." (Ibid.)
Contrary to Bailey's contention, the postjudgment motions were not subsidiary to the wrongful death action, in which Hernandez, although named a nominal defendant, was in fact a plaintiff. (Watkins v. Nutting (1941) 17 Cal.2d 490, 498.) Hernandez presented no claim for damages and was not mentioned in the special verdict. He was not entitled to share in the award because he failed to satisfy the jurisdictional requirements of filing a tort claim and prosecuting his personal and separate claim against the school district. (Accord, Watkins, supra, at p.499.) The postjudgment motions were independent actions in which Hernandez sought to prove he was "entitled to assert a cause of action" for an apportionment of the award under section 377.61. The postjudgment motions were not defensive actions against the school district for negligence or wrongful death, but rather independent actions against Gonzalez, who Hernandez claimed had improperly excluded him from the wrongful death lawsuit. By seeking affirmative relief, Bailey and Hernandez "took the offensive" in attempting to prosecute the postjudgment motions. (Bertero, supra, 13 Cal.3d at p. 53.) Therefore, the postjudgment motions could subject Hernandez to a malicious prosecution cause of action.
Bailey's reliance on Merlet v. Rizzo (1998) 64 Cal.App.4th 53 is misplaced. The Merlet court considered whether "the request for an order for a writ of sale and moving for reconsideration [were] grounds for a malicious prosecution claim," (id. at p. 59) and explained that subsidiary procedural actions or purely defensive actions cannot be the basis for malicious prosecution claims because "permitting such a cause of action would disrupt the ongoing lawsuit by injecting tort claims against the parties' lawyers and because the appropriate remedy for actions taken within a lawsuit lies in the invocation of the court's broad powers to control judicial proceedings." (Ibid.) The court concluded that a motion for a writ of sale occurs after liability and damages have been determined and does not result in a separate and distinct proceeding (id. at p. 61), and a motion for reconsideration was a subsidiary action given the court's " 'broad inherent powers sufficient to control any problems generated by petitioners.' " (Id. at p. 64.) Here, unlike the situation in Merlet, the trial court could no longer exercise its broad discretionary powers to control judicial proceedings because the jury had reached its verdict, and the award had been appealed, thereby depriving the trial court of jurisdiction over the case even before the posttrial motions were filed.
II.
Bailey contends respondents failed to meet their burden of demonstrating both that the Ruttenberg action was such an objectively meritless suit; and, Bailey lacked probable cause to sue (1) Gonzalez for breaching her promise to Hernandez and (2) Gonzalez and her attorney for omitting Hernandez from the wrongful death action.
As we discussed above, the courts that ruled on Hernandez's Ruttenberg action concluded Gonzalez complied with the statute by naming Hernandez as a nominal defendant and Hernandez's failure to file a tort claim barred him from recovering damages. We conclude that compliance with the Claims Act was an element of Hernandez's cause of action and he was obliged to plead and prove he was entitled to recover in the wrongful death action. Hernandez did not plead any facts in his complaint to excuse his failure to file a claim; moreover, in opposition to the motion for summary judgment he did not provide proof that either his lack of compliance was excused or that there existed a dispute of fact concerning whether his compliance was excused. In the Ruttenberg action, therefore, Hernandez was not entitled to an apportionment of Gonzalez's award.
Hernandez in his briefs does not address whatever probable cause he had to bring the postjudgment motions, and we therefore treat the matter as waived. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn 6.) At any rate, on the merits, the analysis of the lack of probable cause in the Ruttenberg action applies equally to the posttrial motions.
Respondents have submitted evidence from which a reasonable person could infer that Bailey engaged in malicious prosecution, based on Hernandez's failure to comply with the Claims Act requirement. Any reasonable attorney would have known of this requirement at the time Bailey filed the operative Ruttenberg complaint, particularly because the trial court had warned Bailey at least one year earlier that the filing deadline for a tort claim petition had "long since" expired. Moreover, no reasonable attorney, armed with such knowledge, would have continued this action for as long as Bailey has done. We need not address the merits of the specific causes of action alleged in the Ruttenberg complaint. We express no view on whether the respondents' claim at trial will be meritorious, but merely conclude that, based on the record, respondents have met their burden to show a probability of success within the meaning of section 425.16.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.