Opinion
E054088
02-06-2013
W.E. JON ALBRECHT, Plaintiff and Respondent, v. BRIAN CHARLES OSTLER, SR. et al., Defendants and Appellants.
Peter Sunukjian and Matthew J. Rumishek for Defendants and Appellants. Jacks & Maybaum, Jerid R. Maybaum and Russell W. Clampitt for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIC1101087)
OPINION
APPEAL from the Superior Court of Riverside County. Paulette Durand-Barkley, Temporary Judge (pursuant to Cal. Const., art. VI, § 21), and Jacqueline C. Jackson, Judge. Reversed.
Judge Jackson ruled on defendants' special motion to strike (Code Civ. Proc., § 425.16), and Commissioner Durand-Barkley permitted defendants to file the motion more than 60 days after service of plaintiff's complaint on them.
Peter Sunukjian and Matthew J. Rumishek for Defendants and Appellants.
Jacks & Maybaum, Jerid R. Maybaum and Russell W. Clampitt for Plaintiff and Respondent.
I. INTRODUCTION
Defendants and appellants, Brian Charles Ostler, Sr. (Ostler) and Law Offices of Brian C. Ostler, Sr. (the law offices), appeal from the trial court's denial of their special motion to strike (anti-SLAPP motion). (Code Civ. Proc., § 425.16.) Defendants contend (1) the complaint of plaintiff and respondent, W.E. Jon Albrecht, for malicious prosecution arose from defendants' protected petitioning activity; (2) plaintiff's complaint failed to state a cause of action for malicious prosecution against defendants; and (3) plaintiff failed to substantiate his cause of action with sufficient admissible evidence. We conclude the trial court erred in denying the motion because plaintiff has failed to show a probability of success on the merits as to the element of malice. Plaintiff contends, however, the trial court properly denied the anti-SLAPP motion and further contends the trial court abused its discretion in permitting the motion to be filed late and conducting the hearing on the motion more than 30 days after it was filed. We disagree, and we reverse the trial court's order denying the motion.
SLAPP is an acronym for strategic lawsuit against public participation.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
II. FACTS AND PROCEDURAL BACKGROUND
A. The Slaiehs' Prior Marital Case
Plaintiff previously represented Deborah Slaieh in marital actions against Nabeel Slaieh. In Riverside County Superior Court case No. SWD007156, plaintiff joined three corporations, EC Rebate Services, Inc., QC Rebate Services, Inc., and TC Rebate Services, Inc. (the three corporations) because they were community property of the Slaiehs. In early 2007, Deborah discharged plaintiff as her attorney, and she and Nabeel dismissed their divorce action.
We refer to the Slaiehs by their first names for clarity and convenience, and not intending any disrespect.
B. Underlying Action
In July 2007, defendants filed a verified complaint in the underlying action against plaintiff on behalf of both Slaiehs and the three corporations, alleging professional malpractice, fraud, and breach of fiduciary duty as to Deborah only; conversion, trespass to chattels, slander of title, cancellation of written instrument, and quiet title on behalf of both Slaiehs; malicious prosecution on behalf of the three corporations; and abuse of process on behalf of Nabeel and the three corporations.
In October 2007, plaintiff filed an anti-SLAPP motion as to the underlying action. The motion was granted, and the causes of action for malicious prosecution and abuse of process were stricken from the complaint. Plaintiff was awarded $28,221.85 in attorney fees against Nabeel and the three corporations.
In March 2008, again on behalf of the Slaiehs and the three corporations, defendants filed a verified first amended complaint against plaintiff. The first amended complaint alleged professional malpractice, fraud, and breach of fiduciary duty as to Deborah; conversion and trespass to chattel as to Deborah, Nabeel, and the three corporations; and slander of title, cancellation of written instrument, and quiet title as to Deborah and Nabeel.
In August 2008, defendants substituted out of the underlying case as attorneys for Deborah, Nabeel, and the three corporations, and another attorney undertook their representation. In February 2009, Deborah filed a new marital action against Nabeel, and the new attorneys came into the case to represent Deborah and Nabeel separately. The three corporations were unrepresented. In July 2009, Daniel Rinaldelli substituted into the case on behalf of Nabeel. Between July and November 2009, Nabeel and the three corporations failed to respond to discovery propounded against them, including requests for admission, and failed to oppose discovery motions filed against them. The requests for admission were deemed admitted.
Although plaintiff states the three corporations were in pro. per., a corporation must be represented in court by an attorney and cannot appear in propria persona. (See Gutierrez v. G & M Oil Co., Inc. (2010) 184 Cal.App.4th 551, 564.)
In November 2009, plaintiff moved for summary judgment against Nabeel and the three corporations based on the deemed-admitted requests for admission. Nabeel and the three corporations did not file any opposition to the motion and did not appear at the hearing on the motion. The trial court granted the motion, and judgment was entered in favor of plaintiff and against Nabeel and the three corporations. Deborah entered into a stipulated judgment in favor of plaintiff on his cross-complaint for fees, and thereafter dismissed herself as a plaintiff in the underlying action.
C. The Complaint in the Current Action
Plaintiff filed a complaint on January 25, 2011, against defendants, Nabeel, the three corporations, Daniel W. Rinaldelli, and Law Offices of Daniel W. Rinaldelli, alleging a single cause of action for malicious prosecution. Plaintiff alleged he had represented Deborah in two marital actions against Nabeel, and the three corporations were joined in the second marital action because they were community property of the Slaiehs. In 2007, the Slaiehs dismissed the marital action then pending, and plaintiff was discharged as Deborah's attorney. Plaintiff filed a first amended complaint on July 7, 2011.
In the first amended complaint, the allegations against defendants were identical to those in the original complaint; the amendments concerned another party.
D. The Anti-SLAPP Motion
In May 2011, defendants filed their anti-SLAPP motion. Following additional briefing by both parties, the trial court conducted a hearing on the motion and then denied the motion. This appeal ensued.
III. DISCUSSION
A. Overview of Anti-SLAPP Motions
The anti-SLAPP statute authorizes a defendant to file a special motion to strike any cause of action arising from an act in furtherance of the defendant's constitutional rights of free speech or petition for redress of grievances. (§ 425.16; Flatley v. Mauro (2006) 39 Cal.4th 299, 311-312 (Flatley).) The purpose of the statute is to prevent the chilling of the valid exercise of these rights through "abuse of the judicial process" and, to this end, is to "be construed broadly." (§ 425.16, subd. (a); Flatley, supra, at pp. 312-313.)
The anti-SLAPP statute establishes a two-step procedure under which the trial court evaluates the merits of a plaintiff's cause of action at an early stage of the litigation. (Flatley, supra, 39 Cal.4th at p. 312.) First, the defendant must show that the cause of action arose from protected activity, i.e., activity in furtherance of the defendant's constitutional rights of petition or free speech. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) In this case, it was undisputed that the action arose from protected activity. Second, if the trial court determines the defendant has met its initial burden, the burden shifts to the plaintiff to demonstrate a reasonable probability of prevailing on the merits of his or her cause of action. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc., supra, at p. 67.) We independently review orders granting or denying a motion to strike under section 425.16. (Flatley, supra, at p. 325.)
B. Probability of Prevailing on Merits
To demonstrate a reasonable probability of prevailing on the merits at trial (§ 425.16, subd. (b)(1)), "the plaintiff must show both that the claim is legally sufficient and there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment." (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108-109.)
1. Sufficiency of Pleading
Defendants first argue that plaintiff's complaint for malicious prosecution was legally insufficient because it did not properly allege plaintiff prevailed on the merits of the underlying action; as to probable cause, the complaint included improper evidentiary allegations rather than allegations of ultimate fact; and the complaint did not allege sufficient facts as to malice. A complaint is legally sufficient if it sets forth "[a] statement of the facts constituting the cause of action, in ordinary and concise language." (§ 425.10, subd. (a)(1); Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550; see also Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099 ["[i]t has been consistently held that '"a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action"'"].)
Plaintiff alleged a single cause of action for malicious prosecution in his complaint against defendants, their former clients, and other parties. The elements of a cause of action for malicious prosecution are that (1) the defendant commenced or directed the commencement of a prior action that was legally terminated in the plaintiff's favor; (2) the prior action was brought without probable cause; (3) the prior action was initiated with malice; and (4) the plaintiff suffered damage or injury as a result. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871.)
Plaintiff alleged that he filed a motion for summary judgment in the underlying action against Nabeel and the three corporations "based on the 'deemed admitted' requests for admission where the parties admitted they had no facts to support the individual allegations or causes of action in their first amended complaint" against him. Plaintiff alleged the trial court granted the motion for summary judgment, and judgment was thereafter entered in his favor, which "constitute[d] a favorable termination of the action on the merits." We conclude plaintiff has adequately alleged that the prior action was terminated in his favor.
Plaintiff alleged that defendants "lacked probable cause to initiate or prosecute" the underlying action. We conclude plaintiff sufficiently alleged ultimate facts to state a claim; the fact that he also included superfluous evidentiary facts in his pleading is irrelevant. (E.g., Estate of Butzkow (1937) 21 Cal.App.2d 96, 99 [stating that in deciding the sufficiency of a pleading, allegations of evidentiary fact are disregarded].)
As to defendants, plaintiff alleged that malice was "demonstrated by Deborah's statement under penalty of perjury that Attorney Ostler and Nabeel instructed her to execute the complaint and Nabeel stated 'they were going to get Jon Albrecht.'" Plaintiff alleged that malice was "further implied by the lack of probable cause." We conclude plaintiff has adequately pleaded malice.
Having determined that plaintiff adequately alleged each of the elements of a claim for malicious prosecution, we reject defendants' contention that plaintiff's complaint failed to state a claim.
2. Reasonable Probability of Prevailing on the Merits
We next examine whether plaintiff has demonstrated "admissible evidence that, if credited, would be sufficient to sustain a favorable judgment." (McGarry v. University of San Diego, supra, 154 Cal.App.4th at pp. 108-109.) In making this assessment, "'[w]e consider "the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) However, we neither "weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law."' [Citation.] If the plaintiff 'can show a probability of prevailing on any part of its claim, the cause of action is not meritless' and will not be stricken; 'once a plaintiff shows a probability of prevailing on any part of its claim, the plaintiff has established that its cause of action has some merit and the entire cause of action stands.'" (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
3. Malice
We focus on the element of malice because we determine that issue is dispositive.
"The malice element of malicious prosecution goes to the defendants' subjective intent for instituting the prior case. [Citation.] Malice does not require that the defendants harbor actual ill will toward the plaintiff in the malicious prosecution case, and liability attaches to attitudes that range '"from open hostility to indifference. [Citations.]"' [Citation.] Malice may be inferred from circumstantial evidence, such as the defendants' lack of probable cause, supplemented with proof that the prior case was instituted largely for an improper purpose. [Citation.] This additional proof may consist of evidence that the prior case was knowingly brought without probable cause or was brought to force a settlement unrelated to its merits. [Citation.] A defendant attorney's investigation and research also may be relevant to whether the attorney acted with malice." (Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1113-1114.)
"To infer malice from the evidence supporting lack of probable cause, the parties' prefiling behavior must have been clearly unreasonable." (Grindle v. Lorbeer (1987) 196 Cal.App.3d 1461, 1466.) In that case, the court held that merely negligent prefiling research did not amount to actual malice on the part of the attorneys. (Id. at pp. 1467-1468.) However, evidence that a party knowingly brought an action without probable cause may supply the required additional proof of malice. (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 226.) Likewise, "malice can be inferred when a party continues to prosecute an action after becoming aware that the action lacks probable cause." (Ibid.)In Daniels, the court held the following evidence was insufficient as a matter of law to establish malice as to attorney defendants: "[A]n apparent lack of evidentiary support for the factual allegations in the underlying action; a lack of factual investigation as evidenced by an inability to provide formal or informal discovery; a client who may have had actual ill will against [the malicious prosecution plaintiff]; and a refusal by [the plaintiff in the underlying action] to dismiss without a waiver of claims by [the malicious prosecution plaintiff]." (Id. at p. 227.)
Plaintiff points to the following evidence to support his claim of malice in initiating or continuing to litigate the underlying case: Deborah's declaration that she told Ostler and Nabeel that (1) plaintiff "'hadn't done anything wrong'"; (2) plaintiff "'never did anything that Attorney Ostler and Plaintiff Nabeel Slaieh alleged in their complaint'"; (3) Ostler and Nabeel "'forced [her] to execute said complaint'"; and (4) Nabeel "stated 'they were going to get [plaintiff].'" Plaintiff also relies on his own "belie[f that defendants] had personal animosity toward him, based on the unnecessary contempt proceedings and State Bar complaint filed in the underlying case." Plaintiff stated in his declaration: "Attorney Ostler aggressively pursued me at the beginning of the [underlying action]. He attempted to have me held in contempt of court based on his claim that I failed to promptly deliver the Deborah Slaieh client files to him. Those files were released to Ostler. Ostler also initiated a State Bar complaint against me over the release of the client files."
Parsing plaintiff's declaration closely, we conclude it does not support a finding of malice. Although plaintiff stated the "files were released to Ostler," he never stated that he had turned those files over before the initiation of the contempt proceedings or the State Bar complaint, and although he stated the contempt proceedings and State Bar complaint were "unnecessary," he never stated they were meritless.
We further conclude Deborah's declaration fails to support a reasonable probability of plaintiff's prevailing on the issue of malice. Deborah attributes to Nabeel, not defendants, the statements that "'they were going to get [plaintiff]'" (italics added) and "he wanted to 'get him' ([plaintiff]) and this [filing the underlying complaint] was the best way" (italics added). However, she did not aver that such statements were made in defendants' presence, or even that the "they" in the first statement referred to defendants. Moreover, although she stated she was "forced" to execute the verified complaint in the underlying action, she never stated she was forced to sign the State Bar complaint, in which she stated plaintiff had refused to turn over her files to Ostler and had refused to return $73,000 in cash she had given him for safekeeping.
Moreover, Ostler stated in his declaration that he had served as attorney for the Slaiehs and the three corporations in the underlying action from June 26, 2007, until August 26, 2008. He stated he had met and conversed with the Slaiehs numerous times "to discuss the allegations which would comprise the Complaint," and that Nabeel had informed him that notice of plaintiff's lien was not served at least 15 days before the lien was recorded. He stated that Deborah had sent him a proposed complaint to the State Bar around the time the underlying complaint was filed, and she had filled out a second complaint to the State Bar, dated August 27, 2007, which Ostler filed. Thereafter, he communicated with the State Bar about statements Deborah had made in her State Bar complaint.
Albrecht further argues that Ostler's verification of the complaint in the underlying action indicates malice. Ostler's verification was made on information and belief and on his representation that the Slaiehs were absent from the county. Two weeks later the Slaiehs themselves verified the complaint. Moreover, Ostler stated in his declaration that he had conferred with the Slaiehs numerous times to discuss their allegations. Thus, the fact that Ostler verified the complaint fails to demonstrate malice, even if the practice of attorney verification is generally discouraged. (See DeCamp v. First Kensington Corp. (1978) 83 Cal.App.3d 268, 275.)
We conclude plaintiff has failed to establish a reasonable probability of prevailing on the merits of his cause of action for malicious prosecution.
C. Timeliness
Plaintiff contends the trial court abused its discretion in permitting the motion to be filed late and in conducting the hearing on the motion more than 30 days after it was filed.
1. Additional Background
Service of the summons and complaint on defendants was completed by February 2, 2011. On March 15, 2011, plaintiff filed a request for entry of default against defendants. Eleven minutes later, defendants attempted to file a demurrer, a motion to strike, and the anti-SLAPP motion, but the court rejected the documents.
Defendants filed a motion for relief from default. Defendants' counsel declared he believed plaintiff's counsel had permitted an additional two weeks to respond to the complaint, and he had given no warning to defendants before filing the defaults. On May 2, the trial court granted defendants' motion to set aside the defaults and granted defendants permission to file the anti-SLAPP motion. Defendants filed the motion on May 5, 93 days after service of the complaint. In his opposition to the anti-SLAPP motion, plaintiff raised the issue of untimeliness. The motion was heard on June 16, 42 days after it was filed.
In ruling on the anti-SLAPP motion, Judge Jackson observed that the motion had been filed two weeks late, but another court had given permission for the late filing, and the court was "not in a position to overrule that prior ruling."
2. Analysis
(a) Late filing of motion
As a general rule, an anti-SLAPP motion should be filed within 60 days after service of the complaint, although the trial court has discretion to permit a later filing date. (§ 425.16, subd. (f).) In Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 684, the court stated that a court "may very well elect" to consider an untimely motion to strike, even if the defendant has failed to request leave of court to file an untimely motion, "if it appears that the motion has merit." In exercising its discretion, the trial court considers whether late filing is consistent with the primary purpose of the anti-SLAPP statute, which is to ensure the prompt resolution of lawsuits that impinge on a defendant's free speech rights. (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 776, 782.)
"The special motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing." (§ 425.16, subd. (f).)
In this case, the reason for the late filing of the motion is manifest—defendants first had to obtain vacation of the defaults. Once the trial court granted that relief, defendants acted promptly in filing the anti-SLAPP motion. We conclude the trial court did not abuse its discretion in permitting the late filing of the anti-SLAPP motion.
(b) Late hearing on motion
Plaintiff further claims the trial court abused its discretion in conducting the hearing on the motion more than 30 days after it was filed. Plaintiff did not raise the issue in the trial court.
The clerk of the court must schedule the hearing on an anti-SLAPP motion within 30 days after service of the motion, docket conditions permitting. (§ 425.16, subd. (f).) In Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1349, the court stated that the statute "does not require the moving party to ensure that the hearing is so scheduled and does not justify the denial of a special motion to strike solely because the motion was not scheduled for a hearing within 30 days after the motion was served." As the court explained in Chitsazzadeh, the statute "plac[es] the burden on the court clerk, rather than the moving defendant, to schedule a hearing to occur within 30 days after service of the motion." (Chitsazzadeh v. Kramer & Kaslow, supra, 199 Cal.App.4th at p. 685, fn. 7.) We conclude there was no reversible error in conducting the hearing more than 30 days after service of the motion.
IV. DISPOSITION
The order appealed from is reversed. Defendants are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur: KING
J.
MILLER
J.