Opinion
B162203.
10-31-2003
NICHOLAS J. BENETIC., Plaintiff and Appellant, v. DIMITRI BIZOUMIS, Defendant and Respondent.
Nicholas J. Benetic, in pro. per., for Plaintiff and Appellant. Malat & Malat and Gerald A. Malat for Defendant and Respondent.
Plaintiff and appellant Nicholas Benetic sued defendant and respondent Dimitri Bizoumis for malicious prosecution. The trial court granted defendants motion for summary judgment. The trial court determined plaintiff could not establish that defendant lacked probable cause when he filed a petition for an injunction to prevent alleged harassment. We affirm.
FACTUAL AND PROCEDRUAL BACKGROUND
A. The Underlying Accident and Plaintiffs Demand Letters
On June 27, 1999, operating a yacht, defendant hit plaintiffs sail boat, allegedly causing damage. Plaintiff then wrote defendant, his attorney, and defendants father-in-law (the owner of the vessel operated by defendant) a series of demand letters.
In a letter to defendants attorney, dated July 6, 1999, plaintiff demanded $25,000 to fix his sail boat and for expenses. On July 7, 1999, defendants attorney, Phillip Chronis, responded, admitted defendants liability and advised plaintiff to contact defendants insurance company.
On July 20, 1999, plaintiff then wrote defendant a two-page letter, stating, among other things: "We have expended a great deal of our time away from our other important business and our ability to generate normal income has been demised [sic] in order to deal NOW!, with this matter caused by you. . . . In the maritime world, we do not act in your manner, we acknowledge our faults, apologize for our errors, make every effort to correct problems, pay for our mistakes, and we do not call our lawyers first." Plaintiff concluded the letter by stating: "We require that the amount of $52,340.00 be paid into our corporate account by Friday 07/23/99 to offset our costs to date & this amount is non-conclusive/un-audited/yet to be fully determined to date."
On July 28, 1999, defendants attorney responded to plaintiff stating: "Both [defendant and his father-in-law] have been instructed to direct all of your communications directly to their insurance company. They have been advised not to discuss this matter with you personally."
Plaintiff again wrote to defendant on August 4, 1999, demanding "use of a[n] equal & quality vessel for our exclusive use" as well as the amount of $52,340. Plaintiff also wrote: "You are purposely ignoring all our attempts to resolve your hit & run & your silence & in-actions are causing us to further our investigations & are costing us more money, which you will pay!" In conclusion, plaintiff stated: "You deal directly with your insurance company & your attorney[.] We will not be a party to your actions as you have wasted too much of our valuable time."
On September 13, 1999, plaintiff wrote defendant demanding "a man to man/face to face meeting with you both at the Port of Los Angeles Police headquarters building[.]" Additionally, plaintiff wrote: "No attorneys for either side are needed. [& para;] This is an attempt to resolve these matters amicably amongst men!"
On April 19, 2000, plaintiff wrote to defendant, again demanding a face-to-face/man-to-man meeting. Plaintiff concluded: "Do not continue your silence & inaction[.] It will not do you any good & [will] only cause you more grief! Resolve this matter now."
Above, we have set forth pertinent portions of the letters that plaintiff sent directly to defendant and touched only briefly upon the letters that plaintiff sent to defendants attorney. Plaintiff sent additional letters to defendants attorney, written in the same tone as the letters identified above and making similar demands.
B. The Criminal Case Against Defendant
On April 20, 2000, defendant was charged with hit and run, failure to notify vessel owner, and speeding. On November 7, 2000, defendant pled no contest to the speeding charge, and the other charges were dismissed.
C. Defendants Petition for an Injunction
On May 23, 2000, defendant filed a verified petition for an injunction prohibiting harassment based upon plaintiffs communications with defendant. On November 16, 2000, the trial court in that action denied defendants petition, concluding that defendant had failed to show by clear and convincing evidence that he was entitled to an injunction.
D. Plaintiffs Federal Admiralty Suit
On June 26, 2000, plaintiff filed an admiralty action in federal district court against defendant for damages arising from the boating accident. As of the date of the briefing on appeal, that lawsuit had not been resolved.
E. Plaintiffs Malicious Prosecution Suit
Having prevailed in the harassment proceeding, plaintiff filed suit against defendant for malicious prosecution on November 7, 2001, approximately one year after the harassment petition was resolved in plaintiffs favor.
Defendant moved for summary judgment, or alternatively, summary adjudication, on the basis that he was not liable for malicious prosecution because plaintiff could not establish that the petition for injunctive relief was brought without probable cause. Defendant asserted that he acted upon the advice of counsel in filing the harassment petition.
Defendant submitted the declaration of Robert B. Schachter, the attorney who represented defendant in the harassment proceeding. Under penalty of perjury, Schachter declared that based upon his review of plaintiffs correspondence to defendant and his prior attorney, it was his opinion that a valid basis existed to seek a restraining order against plaintiff. Specifically, Schachters concerns were based, among other things, upon plaintiffs demands for a face-to-face meeting without attorneys, and plaintiffs statement that inaction would "only cause you more grief."
Schachter also declared that defendant had fully informed him about the underlying boating accident and the criminal proceedings against defendant. Schachter further declared that defendant relied upon his advice in filing the harassment petition and that at no time did defendant take any action on his own or act contrary to Schachters advice.
Defendant also submitted the declaration of Michael Norris, the attorney representing him in the criminal proceeding. Norris advised defendant that while he did not handle these types of harassment cases, based upon his review of plaintiffs correspondence, Norris believed there was a valid basis for a restraining order. Norris declared he was "astonished" at plaintiffs demands for money, and for personal meetings. Norris, in fact, referred defendant to attorney Schachter for purposes of representing defendant in the harassment proceeding.
In opposition, plaintiff asserted that defendant did not fairly disclose all the facts to his counsel regarding the boating accident. Additionally, plaintiff claimed that defendant could not rely upon the advice of counsel because he did not act in good faith and merely sought the advice of counsel as a shield to protect him from a suit for malicious prosecution.
In support, plaintiff attached portions of defendants June 15, 2001 deposition from the federal court litigation. There, defendant testified that his father-in-laws boat was not moored where plaintiff kept his boat at the time the petition was filed. This was contrary to a statement in defendants verified petition for harassment that both boats were in the same marina at the time the petition for harassment was filed. Defendant also testified that only defendants boat was inspected by the Coast Guard following the accident. Again, this was also contrary to a factual assertion in defendants verified petition for harassment that the Coast Guard inspected both boats following the accident.
Plaintiff also submitted the declaration of his son, Joseph Benetic, who declared that while his father was attending the deposition of defendant, during a break, "I overheard [defendant] stating to [his lawyer] that he had Lied [sic] to his prior counsel a Mr Schtchter [sic] and a Mr Norris [sic] and that the statements he had signed under penalty of perjury were untrue."
The trial court granted defendants motion for summary judgment. The trial court determined that plaintiff could not establish that defendant lacked probable cause. The trial court concluded that plaintiffs evidence was not sufficient to raise a triable issue of material fact that (1) defendant acted in bad faith; or (2) defendant withheld relevant facts from his attorneys. The trial court entered judgment for defendant. Plaintiff filed a timely notice of appeal.
CONTENTIONS
Plaintiff contends the trial court erred by granting defendants motion for summary judgment. Plaintiff claims he raised a triable issue of material fact as to whether defendant informed his counsel about the relevant facts regarding the boating accident and whether defendant acted in bad faith.
STANDARD OF REVIEW
This court reviews de novo a trial courts grant of summary judgment. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 698-699.) "Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (Code Civ. Proc., § 437c, subd. (a).) Summary judgment is properly granted if no question of fact exists and the pleadings raise issues that may be decided as a matter of law. (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1464.)
The California Supreme Court in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 explained: "[I]n moving for summary judgment, a `defendant . . . has met his `burden of showing that a cause of action has no merit if he `has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. " (Id. at p. 849, citing Code Civ. Proc., § 437c, subd. (o)(1).)
DISCUSSION
To establish a cause of action for malicious prosecution, a plaintiff must establish by a preponderance of the evidence that (1) the prior action was commenced at the direction of defendant and was resolved in plaintiffs favor; (2) the action was brought without probable cause; and (3) the action was initiated with malice. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871.)
A defendant may establish the existence of probable cause by showing that "any reasonable attorney would have thought the claim tenable." (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 886.) In other words, "[r]eliance upon the advice of counsel, in good faith and after full disclosure of the facts, customarily establishes probable cause." (Pond v. Insurance Co. of North America (1984) 151 Cal.App.3d 280, 288.)
Plaintiff claims there are triable issues of material fact as to whether defendant disclosed all material facts to counsel and whether defendant acted in good faith. In support of these contentions, plaintiff presented the deposition testimony of defendant which showed that defendant made two incorrect statements in the verified petition for the injunction to prevent the alleged harassment: (1) defendant conceded that defendants father-in-laws yacht was not moored in the same marina as plaintiffs boat when the petition was filed; and (2) defendant conceded that both vessels were not inspected by the Coast Guard the day of the accident.
Plaintiff also asserts that his sons declaration stating that he heard defendant tell his lawyer in the federal admiralty proceeding during defendants deposition that he lied to his prior lawyer in the harassment proceeding raises a triable issue of material fact as to whether defendant acted in good faith and fully disclosed all relevant facts to his lawyer in the harassment proceeding.
We reject these arguments and conclude that plaintiff has failed to raise a triable issue of material fact as to whether defendant acted in bad faith and whether defendant informed his attorney as to the relevant facts. The factual inconsistencies in the verified harassment petition relate only marginally to the underlying boating accident. These facts are not relevant to which party caused the boating accident, nor are they relevant to the extent of plaintiffs damages resulting from the boating accident. In this regard, we note that defendants prior counsel conceded defendants liability in the boating accident.
Finally, the incorrect statements in the verified petition are not relevant to the issue of whether a reasonable attorney, upon reviewing plaintiffs written communications to defendant, would conclude there was a reasonable basis to file a harassment petition against plaintiff. In this regard, defendants harassment petition was based solely upon plaintiffs demand letters, not any personal interaction at the location where the boats were moored.
There is no evidence that plaintiffs attorney, Schachter, who filed the harassment petition, was unaware of the relevant facts relating to the boating accident. In fact, the chronology of events indicates that the criminal charges had been filed against defendant prior to defendant filing the petition to prevent harassment. Moreover, attorney Schachter declared that he was fully aware of those criminal charges against defendant before he filed the petition.
Additionally, the basis for the petition for the injunction to prevent harassment was the correspondence from plaintiff following the boating accident. There is no evidence that defendant did not fully inform attorney Schachter about the correspondence or any other facts relating to plaintiffs conduct following the accident.
Finally, plaintiffs sons declaration does not indicate what alleged "lies" defendant told his counsel. Those alleged statements by defendant to his counsel would have occurred on June 15, 2001, the day of defendants deposition in the federal court litigation. The malicious prosecution action was filed on November 7, 2001. The summary judgment motion was heard on August 1, 2002. There is no indication that plaintiff made any effort to depose defendant or his counsel about these alleged "lies." On this record, the trial court correctly ruled that plaintiffs sons declaration was insufficient to raise a triable issue of material fact as to whether defendant acted in good faith and whether he disclosed the relevant facts to his attorney regarding plaintiffs conduct following the boating accident.
Pursuant to Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, we conclude that defendant has shown that plaintiff cannot establish one of the elements for a claim of malicious prosecution—that defendant lacked probable cause when he filed the petition for harassment.
DISPOSITION
The judgment is affirmed. Defendant is to recover costs on appeal.
We concur: CROSKEY, Acting P.J. and ALDRICH, J.