Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC 388605. Ernest M. Hiroshige, Judge.
Law Offices of Valorie L. Ferrouillet and Valorie L. Ferrouillet for Defendant and Appellant.
Bruce M. Friedman for Plaintiff and Respondent.
ROTHSCHILD, J.
George Vranau sued Stere Gima for malicious prosecution. Following a two-day bench trial, the superior court entered a $29,850 judgment in favor of Vranau, including a $25,000 punitive damages award. Gima appeals, and we reverse.
BACKGROUND
Gima and Vranau operated a business at a building they co-owned in Los Angeles, sharing the profits equally. In approximately 1993, Vranau moved to Oregon. Thereafter, the arrangement between Gima and Vranau was that Gima would continue to manage the property and would send Vranau half the profits (after “[t]axes, maintenance, insurance, ” and so forth), but the arrangement did not specify how often the payments were to be made. The arrangement continued until the building was sold in 2000.
In November 2001, Vranau sued Gima. The record before us does not contain the pleadings or any other documents from that case, but the parties appear to agree it was a suit for breach of oral contract, alleging that Gima had not fully paid Vranau his share of the profits and had failed to deliver to Vranau the second of two “‘dough sheeter’” machines. On October 29, 2002, Vranau voluntarily dismissed the complaint without prejudice.
Gima’s request that we judicially notice the dockets in the previous litigation is granted.
On November 7, 2002, Vranau again sued Gima, apparently alleging the same claims as before. Again, the record on appeal contains no pleadings or other documents from that case, but the parties appear to agree that after a bench trial the court entered judgment in favor of Gima on the basis of the statute of limitations and other grounds. The judgment was affirmed on appeal.
In December 2006, Gima sued Vranau for malicious prosecution. Again, the record on appeal contains no pleadings or other documents from that case, but at trial in the instant case the judge read into the record the following fragment of the statement of decision from Gima’s 2006 malicious prosecution action: “As in the trial in the underlying case plaintiff failed to produce all the 52 checks he claimed to have sent to defendant nor the invoice or any document evidencing his shipment of this second dough sheeter to defendant. Under these circumstances, any reasonable person would have sued to seek relief. Therefore, defendant acted in good faith [in] suing plaintiff in the underlying action.” It thus appears that judgment was entered in favor of Vranau.
In April 2008, Vranau filed the instant malicious prosecution action, seeking both compensatory and punitive damages on the basis of Gima’s 2006 malicious prosecution action. Vranau’s complaint named Gima, Paul J. Cohen (Gima’s former attorney), and an entity called Personal Injury Solutions, Inc. as defendants. Both Cohen and Gima were self-represented.
The case proceeded to a two-day bench trial. Cohen and Personal Injury Solutions, Inc. settled during trial. Vranau’s claim against them was accordingly dismissed with prejudice, and they are not parties to this appeal.
In response to Vranau’s notice to appear and produce documents at trial, Gima produced what he claimed were copies of 56 money orders and cashier’s checks he had sent to Vranau in the course of their business arrangement. During Gima’s testimony in Vranau’s case in chief, Vranau’s attorney objected to introduction of the documents, arguing that “[t]his is after the fact. The issue is what did he produce at the time, before and after the litigation involving my client. The original action by my client against him and the malicious prosecution action by him against my client. [¶] What he may or may not have today... it seems to me is irrelevant to these proceedings because it’s after the fact so I would object to their admission.” Cohen, who had not yet settled, argued that the documents were relevant and admissible. The court sustained the objection and excluded the documents on the ground that “it was the status of the evidence in the previous proceeding that is relevant, ” but the court offered to reconsider the issue if the documents “somehow become relevant” later in the trial.
On the second day of trial, after hearing further argument from the parties, the court reaffirmed its ruling that the documents were irrelevant and consequently inadmissible. After reading aloud the portion of the statement of decision from the previous malicious prosecution case, quoted ante, the court reasoned as follows: “So to me that decision by [the judge in the previous malicious prosecution case] would preclude the further use as evidence of the 52 checks which the party Mr. Gima says he has. We have no record of that. I know he has a stack of checks in his possession, but it’s not relevant to this case whether or not you can prove that you had 52 checks now.”
The court also excluded other evidence on the same basis, namely, that the decision in Gima’s malicious prosecution action barred Gima from now introducing evidence concerning the merits of Vranau’s breach of contract action(s). For example, when Gima attempted to question Vranau about certain tax records that would show how much Gima had paid him, the court excluded the evidence as irrelevant because Gima was “trying to go behind” the decision in his prior malicious prosecution case.
At the conclusion of the trial, the superior court found in favor of Vranau. Announcing its statement of decision orally on the record, the court stated the following: “The court would find that it’s clear that Mr. Gima believed that because he did not have a fair opportunity in the previous litigation to show that he had submitted all payments to Mr. Vranau regarding this property and admitted that he only had 32 checks when there was an allegation that 52 checks would have been called for. He disagrees with the necessity to have 52 checks, but he now purports to have found them and also that he also found some IRS documents. But these are only found in May of 2009, this year, so he never had those at any prior time. And if he did he should have produced them at that time because that is when they were relevant and important. They’re not important now. Because the question is whether you had probable cause in the underlying case, and I’m finding you did not have probable cause to bring the malicious prosecution case in the underlying case. [¶] And the court is basing that largely on the finding by [the judge in the previous malicious prosecution case] as I quoted into the record today that the plaintiff failed to produce all the 52 checks he claimed to have been sent to the defendant, nor the invoice or any other document evidencing his shipment [of] the second dough sheeter to the defendant. This was part of the decision that was in writing that was given to the defendant here. [¶] Like I said because one wins any civil lawsuit it doesn’t give you the right to bring a malicious prosecution case because you’re mad at the other side and you happen to win. That is not good enough. I mean, you have to have what is called probable cause to bring that second lawsuit. And I find that you did not.”
Before he was dismissed, Cohen represented to the court that in Vranau’s previous suits against Gima “there was never any allegation of a specific rental month missing.... [Vranau] never identified a specific payment.” Vranau himself testified that his arrangement with Gima did not call for payments on any set schedule, monthly or otherwise, and the record contains no evidence that a particular number of payments should have been made. The idea that there should have been 52 checks apparently derives from Gima’s deposition testimony in a prior lawsuit, in which he claimed (apparently falsely) that during discovery in that litigation he had produced 52 checks.
The court entered judgment against Gima, awarding $4,500 in compensatory damages, $25,000 in punitive damages, and $350 in costs. Gima timely appealed.
DISCUSSION
Gima argues that the trial court prejudicially abused its discretion when it excluded the copies of the 56 money orders and cashier’s checks. We agree.
The plaintiff in a malicious prosecution action has the burden of proving that the defendant pursued the underlying litigation without probable cause and with malice. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965-966.) Vranau thus had the burden of proving that Gima pursued the underlying litigation without probable cause and with malice.
The underlying litigation was likewise a malicious prosecution action. Consequently, Vranau had the burden of proving that Gima lacked probable cause to believe that Vranau had pursued the underlying breach of contract action(s) without probable cause and with malice. The merits of Vranau’s present malicious prosecution action were therefore unavoidably tied to the merits of his prior breach of contract action(s). If Gima had probable cause to believe that Vranau pursued the breach of contract action(s) without probable cause and with malice, then Vranau’s malicious prosecution action would lack merit.
The statement of decision and judgment in Gima’s malicious prosecution action against Vranau do not show that Gima pursued that action without probable cause or with malice. They show only that, on the evidentiary record developed in Gima’s malicious prosecution action, the action lacked merit. But they do not show that Gima lacked probable cause to believe the action had merit. That issue-whether Gima had probable cause to believe his malicious prosecution action had merit-was not litigated in Gima’s malicious prosecution action. As the trial court in the instant case put it, just “because one wins any civil lawsuit it doesn’t give you the right to bring a malicious prosecution case....” Nothing in the statement of decision in Gima’s malicious prosecution action shows he pursued that action without probable cause or with malice.
For similar reasons, the trial court erred when it said that “it was the status of the evidence in the previous proceeding that is relevant, ” so any checks or other documents not introduced in the previous litigation are irrelevant and inadmissible. What is relevant in the present malicious prosecution action is Gima’s state of mind when he was pursuing the previous malicious prosecution action. His state of mind during that action might or might not be fully reflected in the evidentiary record developed in that action.
The copies of the 56 checks (and any other documentary evidence, such as tax records, showing that Gima had paid Vranau more than Vranau claimed) would be relevant to showing Gima had probable cause to believe his malicious prosecution action had merit, that is, to believe that Vranau pursued the breach of contract action(s) without probable cause and with malice. Regardless of whether Gima was able to find the documents at the time of the previous litigation, if the documents exist and are genuine they would tend to show that the 56 payments were in fact made, that Gima knew they were made, and that he had reason to believe Vranau knew they were made. Thus, the documents would tend to show that Gima had probable cause to believe that Vranau lacked probable cause to bring the breach of contract action(s). In that way, Gima may have had probable cause to believe his malicious prosecution action had merit (because he had probable cause to believe Vranau knew the breach of contact action(s) lacked merit) even though the judgment in Gima’s malicious prosecution action determined that the action in fact lacked merit (on the record there presented).
Moreover, the exclusion of the checks, together with the trial court’s belief that the statement of decision in Gima’s malicious prosecution action conclusively established that Gima lacked probable cause to pursue that action, prejudiced Gima by effectively prohibiting him from putting on a defense. (See, e.g., Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1114.) Whenever Gima tried to show that he had probable cause to believe his malicious prosecution action had merit because he had probable cause to believe Vranau had pursued the breach of contract action(s) without probable cause and with malice, the court erroneously stopped him on the ground that he was “trying to go behind” the decision in the previous malicious prosecution action.
For similar reasons, Gima’s apparent failure even now to produce documentary evidence that he delivered the second dough sheeter does not render the trial court’s errors harmless. With or without documentary evidence, Gima could testify that he did deliver the dough sheeter. If the trier of fact credits such testimony, it could reasonably infer that Vranau knew the dough sheeter was delivered and therefore acted maliciously and without probable cause when he sued Gima for failing to deliver it.
We conclude that the trial court prejudicially abused its discretion by excluding the 56 checks and money orders. We therefore reverse the judgment.
DISPOSITION
The judgment is reversed. Appellant shall recover his costs of appeal.
We concur: MALLANO, P. J.CHANEY, J.