Opinion
E032326.
7-8-2003
MAXINE G. BITTERS, Plaintiff and Respondent, v. STEVEN D. SILVERSTEIN, Defendant and Appellant.
Attlesey & Thomlinson and Keith A. Attlesey for Defendant and Appellant. Dabney B. Finch and Mitchell S. Wagner for Plaintiff and Respondent.
1. Introduction
Steven D. Silverstein represented Jonathan G. Rutledge and Barbara Rutledge in their unlawful detainer action against Maxine G. Bitters, who earlier had sued the Rutledges for rescission and elder abuse. Bitters successfully litigated her rescission action and the Rutledges voluntarily dismissed their complaint for unlawful detainer. Bitters then brought a malicious prosecution action against the Rutledges and their attorneys, including Silverstein. Silverstein filed a motion under the anti— Strategic Lawsuits Against Public Participation (anti-SLAPP) statute and the court denied his motion. In his appeal, Silverstein claims the trial court erred in denying his motion because Bitters had failed to establish that he lacked probable cause and acted with malice in initiating and maintaining the unlawful detainer action on behalf of his clients.
Code of Civil Procedure section 425.16.
We conclude that Bitters failed to present evidence to establish a prima facie showing of a probability of prevailing on her malicious prosecution action. Bitters provided no evidence of one of the elements of malicious prosecution, namely, that Silverstein lacked probable cause to bring the unlawful detainer action. For this reason, we conclude that the trial court erred in denying Silversteins anti-SLAPP motion and we reverse the courts judgment.
2. Factual and Procedural History
In 1998, Bitters purchased her home in Temecula, California, for $ 163,000. Bitters paid $ 55,000 down and financed $ 108,000. In the following year, after Bitters fell behind in her mortgage payments, the house went into foreclosure. The Rutledges, who knew Bitters from church, offered to help Bitters by paying the $ 11,352.40 in arrears and assuming ownership of the house. They offered to allow Bitters to remain in the house for the rest of her life in exchange for transferring title to the Rutledges and paying them $ 900 a month in rent. Bitters signed a deed conveying title to her property to the Rutledges. When Bitters fell behind in her rent payments, the Rutledges sent her a letter and other notices informing her that the rental agreement had been terminated and the property had to be vacated. After Bitters discovered that the Rutledges had never assumed her mortgage loan, she began to send her payments directly to the mortgage company.
Bitters, who was 68 years of age at the time, filed a lawsuit against the Rutledges for fraud, financial abuse of an elder, and rescission to recover title to her Temecula home.
In August of 2001, Silverstein, on behalf of the Rutledges, filed an unlawful detainer action to evict Bitters from her home. Bitterss attorney, Dabney Finch, informed Silverstein of certain facts, including that title to the subject property was in dispute, Bitters and the Rutledges did not have a valid tenancy relationship, Bitters was making payments on her mortgage loan for the property, and the amount of her mortgage payments was greater than the agreed-upon rent payments.
In September of 2001, the court granted Bitterss motion to consolidate her rescission action with the Rutledgess unlawful detainer action. Terry Souders represented the Rutledges in the consolidated proceedings. After Bitters moved for nonsuit on the unlawful detainer action, the Rutledges voluntarily dismissed their complaint. The court later granted directed verdicts in Bitterss favor on her causes of action for rescission and elder abuse.
On February 4, 2002, Bitters filed her complaint for malicious prosecution against the Rutledges, Souders, and Silverstein. Silverstein filed a motion to strike the complaint under the anti-SLAPP statute. In opposing Silversteins motion, Bitters submitted two declarations from her attorneys Finch and Mitchell Wagner. Along with his reply, Silverstein filed a written objection to Wagners declaration on various grounds. In sustaining some of Silversteins objections, the court struck parts of Wagners declaration. The court then denied Silversteins motion because it found that Bitters satisfied her burden in defending against the anti-SLAPP motion. In particular, the court found that Bitters sufficiently established a probability of prevailing in her malicious prosecution claim based on Finchs declaration, which established that Silverstein had information that should have deterred him from proceeding with the unlawful detainer action.
3. Discussion
Silverstein claims the trial court erred in denying his anti-SLAPP motion.
In enacting Code of Civil Procedure section 425.16, the Legislature established a procedural remedy for the expeditious resolution of SLAPP suits. "A cause of action against a person arising from any act of that person in furtherance of the persons 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." Typically, SLAPP suits ". . . are brought, not to vindicate a legal right, but rather to interfere with the defendants ability to pursue his or her interests. Characteristically, the SLAPP suit lacks merit; it will achieve its objective if it depletes defendants resources or energy. The aim is not to win the lawsuit but to detract the defendant from his or her objective, which is adverse to the plaintiff." Code of Civil Procedure section 425.16 serves to expose and dismiss such meritless suits, thereby preventing them from having a chilling effect of the valid exercise of a persons free speech and petition rights. In determining whether a trial court properly denied a motion to strike under Code of Civil Procedure section 425.16, we apply de novo review. The defendant bears the burden of establishing a prima facie case by showing that the contested act arose in furtherance of his right of petition or free speech in connection with a public issue. The filing of a judicial complaint constitutes an act exercising the right of petition in connection with a public issue. After defendant makes the requisite showing, the burden shifts to the plaintiff to establish the probability of prevailing on the merits of his claim. "Put another way, 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." [Citations.]"
Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal.App.4th 1057, 1063; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 645, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, footnote 5.
Code of Civil Procedure section 425.16, subdivision (b)(1).
Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th at page 645, citations omitted.
Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 819, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at page 68, footnote 5.
Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929; Foothills Townhome Assn. v. Christiansen (1998) 65 Cal.App.4th 688, 695.
Navellier v. Sletten (2002) 29 Cal.4th 82, 88; M. G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, 629.
Code of Civil Procedure, section 425.16, subdivision (e); Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1188; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.
Navellier v. Sletten, supra, 29 Cal.4th at page 88; M. G. v. Time Warner, Inc., supra, 89 Cal.App.4th at page 629.
Navellier v. Sletten, supra, 29 Cal.4th at pages 88— 89; Mattel, Inc. v. Luce, Forward, Hamilton & Scripps, supra, 99 Cal.App.4th at page 1188.
In this case, Silverstein satisfied his initial burden by the filing of the unlawful detainer action on behalf of his clients. Silverstein, however, argues that Bitters failed to satisfy her burden of establishing the necessary factual showing for her cause of action for malicious prosecution.
Mattel, Inc. v. Luce, Forward, Hamilton & Scripps, supra, 99 Cal.App.4th at page 1188; Chavez v. Mendoza, supra, 94 Cal.App.4th at page 1087.
"A claim for malicious prosecution is established by showing that the action was (1) commenced by or at the direction of defendant and was pursued to a legal termination in favor of the plaintiff; (2) was brought without probable cause; and (3) was initiated with malice. [Citation.]" As to the element of probable cause, the plaintiff must show that defendant had a reasonable belief, founded on sufficient facts, to believe the truth of the charge. Defendant may have probable cause to bring an action even if the action lacks merit.
Mattel, Inc. v. Luce, Forward, Hamilton & Scripps, supra, 99 Cal.App.4th at page 1190; see also Vanzant v. DaimlerChrysler Corp. (2002) 96 Cal.App.4th 1283, 1288-1289.
Vanzant v. DaimlerChrysler Corp., supra, 96 Cal.App.4th at page 1289.
Vanzant v. DaimlerChrysler Corp., supra, 96 Cal.App.4th at page 1289.
"Reasonable lawyers may differ as to the varying degrees of merit of cases. Probable cause exists unless all reasonable lawyers would agree the action is totally and completely devoid of merit. [Citation.]"
Vanzant v. DaimlerChrysler Corp., supra, 96 Cal.App.4th at page 1289.
Malicious prosecution is a disfavored tort.
Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 872-873, 254 Cal. Rptr. 336, 765 P.2d 498.
"A litigant or attorney who possesses competent evidence to substantiate a legally cognizable claim for relief does not act tortiously by bringing the claim, even if also aware of evidence that will weigh against the claim. Plaintiffs and their attorneys are not required, on penalty of tort liability, to attempt to predict how a trier of fact will weigh the competing evidence, or to abandon their claim if they think it likely the evidence will ultimately weigh against them. They have the right to bring a claim they think unlikely to succeed, so long as it is arguably meritorious. [Citation.] That the trial court does not, pursuant to section 425.16, weigh the evidence or decide disputed questions of fact does not, therefore, undermine the conclusion that a claim found to have a probability of success under that statute was brought with probable cause."
Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 822, footnote omitted.
The question, therefore, is whether Bitters has established a prima facie showing that Silverstein did not have probable cause to file the action for unlawful detainer. In opposing Silversteins anti-SLAPP motion, Bitters presented declarations from her two attorneys, Finch and Wagner. Based on these declarations, Bitters argues that Silverstein knew that she had a life estate, that title was in dispute, and that she had been making mortgage payments, which were higher than the agreed rent.
Silverstein contends that, even though he was advised of these factual allegations, a reasonable attorney would not have abandoned his clients and withdrawn from representing their interests in the unlawful detainer action.
The probable cause determination is a question of law to be evaluated under the objective standard of reasonableness. Before making the probable cause determination, however, the court may need to resolve the evidentiary disputes and factual questions. Whether certain facts exist is a question of fact. Initially, when an attorney decides to proceed with a matter, he is entitled to rely on information provided by his client, unless such information is known to be false. If the facts remain unresolved, the attorney may rely on his clients version and proceed with the matter without being guilty of malicious prosecution. Here, Silverstein represented the Rutledges for about a month. Silversteins representation ended in September of 2001 when the court consolidated the Rutledgess unlawful detainer action with Bitterss rescission action. According to Finchs declaration, during a phone conversation with Silverstein on August 13, 2001, Finch informed Silverstein of the allegations in Bitterss complaint for rescission. According to Finch, he also "confirmed that the allegations were true." To this, Silverstein responded, " Well, Im going to oppose the motion anyway and proceed with the [unlawful detainer] trial."
Morrison v. Rudolph (2002) 103 Cal.App.4th 506, 512; Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 497-498.
Morrison v. Rudolph, supra, 103 Cal.App.4th at page 512.
Morrison v. Rudolph, supra, 103 Cal.App.4th at page 512.
Morrison v. Rudolph, supra, 103 Cal.App.4th at page 512.
See Morrison v. Rudolph, supra, 103 Cal.App.4th at page 513; Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 165.
At this stage in the proceeding, everything was unresolved and subject to dispute. Regardless of the ultimate outcome of the rescission action, and regardless of the perceived merits of the Rutledgess unlawful detainer action, Bitters had not provided any evidence to establish a prima facie showing that Silverstein did not have probable cause to initiate the unlawful detainer action. Bitters simply offered her attorneys declaration attesting to the fact that his clients made certain allegations and he confirmed the allegations were true.
As stated earlier, Bitters must establish a prima facie showing of facts to show a probability of prevailing on her malicious prosecution claim. To satisfy this burden, Bitters must present admissible evidence. This prima facie showing cannot be established with mere allegations. One sides denial of the other sides version of the facts cannot constitute notice of a specific fatal flaw in the claim, thereby negating probable cause for filing the action. Based on our independent review of the record, we conclude that Bitters has failed to substantiate her claim that Silverstein lacked probable cause to file the unlawful detainer action. Nevertheless, in a post hoc effort to substantiate her allegations, Bitters filed a request for judicial notice of trial testimony in the rescission case. The evidence, however, was neither presented in opposition to Silversteins anti-SLAPP motion nor available to Silverstein for the duration of his brief representation of the Rutledges in the unlawful detainer action. The probable cause determination must take into account the information available to Silverstein at the time that he made the decision to proceed with the matter.
See Mattel, Inc. v. Luce, Forward, Hamilton & Scripps, supra, 99 Cal.App.4th at page 1188; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497-1498.
See DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 568.
See Morrison v. Rudolph, supra, 103 Cal.App.4th at page 514, citing Swat-Fame Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 627.
See Morrison v. Rudolph, supra, 103 Cal.App.4th at page 514.
As stated above, the record indicates nothing more than mere allegations. Although Souder, on behalf of the Rutledges, ultimately requested the dismissal of the unlawful detainer action in the consolidated proceedings, no evidence in the record supports plaintiffs contention that Silverstein acted unreasonably in representing his clients in the property dispute. In filing her rescission action, Bitters attempted to prove that the Rutledges defrauded her, thereby regaining title to her house. In response, in filing their unlawful detainer action, the Rutledges attempted to establish their ownership in the house and remove Bitters who had failed to pay the agreed-upon rent. Plaintiff may not point to facts confirmed months later to show that Silverstein lacked probable cause to initiate and maintain the unlawful detainer action during the month that he represented the Rutledges.
We conclude that Bitters failed to satisfy her burden of establishing a prima facie showing of facts to support the elements of her malicious prosecution claim. We therefore conclude that the trial court erred in denying the anti-SLAPP motion.
See Swat-Fame, Inc. v. Goldstein, supra, 101 Cal.App.4th 613, 625, footnote 9.
4. Disposition
For the reasons stated above, we deny Bitterss request for judicial notice and reverse the trial courts judgment. Silverstein shall recover his costs on appeal.
We concur: Richli, Acting P.J., and King, J.