Opinion
B223324
12-13-2011
JOSEPH CALLANAN, Plaintiff and Respondent, v. DONALD W. COOK et al., Defendants and Appellants.
Gary S. Casselman, Robert Mann, and Paul L. Hoffman for Defendants and Appellants. Jorgensen & Salberg, LLP, Richard Allen Jorgensen and Jeffrey R. Salberg, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC398664)
APPEAL from a judgment of the Superior Court of Los Angeles County, Soussan G. Bruguera and Barbara A. Meiers, Judges. Affirmed.
Gary S. Casselman, Robert Mann, and Paul L. Hoffman for Defendants and Appellants.
Jorgensen & Salberg, LLP, Richard Allen Jorgensen and Jeffrey R. Salberg, for Plaintiff and Respondent.
Donald W. Cook and the law partnership Mann & Cook appeal from the judgment in a malicious prosecution case awarding damages to respondent Joseph Callanan. The trial court found that appellants brought a cause of action for a civil conspiracy in a prior lawsuit against respondent without probable cause and with malice. We agree with the court's legal conclusion that appellants' conspiracy claim lacked probable cause. We find substantial support in the record for the conclusion that the conspiracy claim was brought with malice. We reject appellants' challenge to the damage award and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Respondent's malicious prosecution suit stems from two civil cases filed in the United States District Court for the Eastern District of California. (Urbina v. County of Kern (E.D.Cal. Sept. 26, 2007, No. 1:05-CV-01056) [judgment for plaintiff] (Urbina I)and Urbina v. Carson (E.D.Cal. June 3, 2008, No. 1:07-CV-00153) [order of dismissal] (Urbina II).)
We take judicial notice of the federal court's docket in these two cases. (Evid. Code, § 452, subd. (d).)
On August 15, 2003, Kern County deputies and City of Shafter police officers arrested Jose Trinidad Lara Urbina for trespassing and resisting arrest. He was booked and released. Six days later, he went to an emergency room, complaining of chest pain with shortness of breath, which he attributed to being struck in the chest during the arrest. He was hospitalized for a right rib fracture and pneumothorax (collapsed lung). Mann & Cook filed a civil rights complaint on Urbina's behalf against Kern County, the City of Shafter, and individual officers, alleging that excessive force was used during Urbina's arrest. (Urbina I.) In 2006, the parties subpoenaed a medical screening form completed by jail nurse Gail Carson upon Urbina's booking. On the form, Carson noted that Urbina had "complained of a sore chest and a sore right leg. He doesn't cooperate with the chest examination . . . His [oxygen saturation] was 96 percent. He bears weight when he walks. And he puffs as if he's out of breath and was chased per officer." The form included a chart titled "Current or Chronic Health Problems," which listed the various body systems. It gave the option of checking a "yes" or "denies" box and of circling any positive answer. Carson checked the box "denies" next to "respiratory system" and did not circle any affirmative answer. Under substance abuse, she circled "meth" and noted that it was last used one week before. From a list of possible medical actions, which included among others actions titled "MDSC" and "sent to ER," Carson selected "MDSC 8/18." That meant Urbina was to be seen by a jail physician on August 18, 2003, three days after the arrest.
Carson's notes are in abbreviated form. She explained the meaning of the abbreviations in her March 7, 2007 deposition.
The medical screening form included in the record on appeal consists of a single page. The record also includes the transcript of Carson's March 7, 2007 deposition. The questions asked at the deposition indicate that the form consisted of at least three pages. On page 3 of the form, Carson noted that she observed a birthmark on the right upper part of Urbina's back when she examined him with his shirt off. She testified that she saw no bruises, abrasions, or other marks on Urbina's rib cage. If she had seen any, she would have recorded them on that page.
In July 2006, Carson spoke with attorney Andrew Thomson, who represented Kern County; Callanan, who was the County's excessive force expert; and medical expert Dr. Orner. Callanan and Dr. Orner prepared reports that included information obtained from their respective conversations with her. Callanan reported that Carson recalled that Urbina had a birthmark and was non-cooperative and that she noted "complaints (chest & legs) . . . , lungs clear, no external trauma, ambulatory OK." Dr. Orner reported at greater length that Carson "is familiar with the symptoms of rib fracture, pneumothorax, and pulmonary distress (dyspnea). She stated that Mr. Urbina did not have any of these symptoms. She stated that the 'puffing' noted on the Screening Form was not dyspnea, but more like anxiety (hyperventilation) or panting. She did not see any bruise (ecchymosis) or abrasion on Mr. Urbina's chest wall. There was no bleeding. There was no complaint of chest pain related to inspiration. Nurse Carson further stated that if anything was abnormal on her screening, she would direct the individual to immediate medical care." Dr. Orner also stated that Urbina's rib fractures and pneumothorax were not attributable to his arrest but were complications of inhaling methamphetamine.
In early 2007, Mann & Cook filed Urbina II against Carson, Orner, and Callanan. As amended, the complaint alleged the defendants were liable for disseminating Urbina's confidential medical information (Civ. Code, §§ 56.10, subd. (a) & 56.36, subd. (b)); that they acted under color of state law to violate Urbina's rights under the Fourth and Fourteenth Amendments of the federal constitution (42 U.S.C. § 1983); and that they conspired to obstruct justice in Urbina I by inducing Carson to render a reevaluation of Urbina's physical condition that was more favorable to the defendants in Urbina I than what had been included in her original notes. (42 U.S.C. § 1985, subd. (2) & (3).) The defendants filed motions to dismiss Urbina II for failure to state a claim. (Fed. Rules Civ. Pro. 12(b).) The motions were granted with prejudice, except that the court allowed leave to amend the cause of action under the section 1983. (Urbina v. Carson, 2007 WL 2814652 (E.D.Cal. September 25, 2007).) On September 26, 2007, a judgment for the plaintiff was entered in Urbina I. Urbina II eventually was dismissed in 2008 after the plaintiff failed to amend.
We refer to title 42 of the United States Code sections 1983 and 1985 respectively as "section 1983" and "section 1985."
The record on appeal does not contain the memorandum and order granting summary judgment in favor of Kern County or the final judgment for the plaintiff against the City of Shafter in Urbina I, both of which were admitted as exhibits at trial. The federal court docket indicates that the final judgment was pursuant to an offer to compromise under Federal Rule of Civil Procedure Rule 68, which allows a defendant to serve an offer to compromise and provides that "[i]f the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made."
In 2008, respondent brought this lawsuit against appellants for abuse of process and wrongful use of civil proceedings, alleging that Urbina II had been brought without probable cause and with malice. Judge Soussan G. Bruguera sustained without leave to amend appellants' demurrer to the cause of action for abuse of process, overruled the demurrer to the cause of action for malicious prosecution, and denied the special motion to strike respondent's first amended complaint under the anti-SLAPP statute (Code Civ. Proc., § 426.16 et seq.). After a bench trial, Judge Barbara A. Meiers found that probable cause supported the first three causes of action in Urbina II, but that the fourth cause of action for conspiracy to obstruct justice was brought without probable cause and with malice. The court awarded respondent $83,582 in compensatory and $15,000 in punitive damages. Appellants' objections to the proposed statement of decision were overruled. The judgment was filed on January 21, 2010. This timely appeal followed.
The term "wrongful use of civil proceedings" is used to refer to the tort commonly known as "malicious prosecution." (See Rest.2d, Torts § 674; 5 Witkin, Summary 10th (2005) Torts, § 486, p. 711.)
DISCUSSION
I
We first address several preliminary issues raised by the parties on appeal. Appellants seek review of the denial of their anti-SLAPP motion (Code Civ. Proc., § 426.16). The order denying the motion is independently appealable. (Code Civ. Proc., §§ 425.16, subd. (i) & 904.1, subd. (a)(13).) It cannot be reviewed on appeal from the judgment. (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1246-1247.)
For the first time on appeal, respondent argues that the doctrines of res judicata and collateral estoppel bar relitigation of the underlying causes of action and of issues resolved in Urbina II. This argument is forfeited because it was not presented to the trial court, the proper forum for the elements of either res judicata or collateral estoppel to have been raised and proven. (See Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 332-333 [collateral estoppel argument waived; federal district court rulings in underlying case not binding, although relevant, in action for malicious prosecution]; see also Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1049 [collateral estoppel not applicable in action for malicious prosecution].)
Alternatively, respondent contends that none of the causes of action in Urbina II was supported by probable cause. Essentially, he invites us to review the trial court's finding that there was probable cause to support some of the claims in Urbina II. This finding was favorable to appellants and adverse to respondent. Respondent has not cross-appealed from the judgment but may, without appealing, raise errors for the limited purpose of showing that appellants were not prejudiced by the errors asserted as grounds for reversal. (See Code Civ. Proc., § 906; Erikson v. Weiner (1996) 48 Cal.App.4th 1663, 1671.) Our review of errors raised by respondent is discretionary, and we find it unnecessary here. To prevail on his malicious prosecution cause of action, respondent needed to show any one, rather than all, of the claims in Urbina II lacked probable cause. (See Bertero v. National General Corp. (1974) 13 Cal.3d 43, 57, fn. 5 ["an action for malicious prosecution lies when but one of alternate theories of recovery is maliciously asserted"].) Since, as we shall discuss, the conspiracy claim in Urbina II was brought without probable cause and with malice, we need not review whether the remaining claims in that case were supported by probable cause.
II
To prevail on a cause of action for malicious prosecution, a plaintiff must prove that the underlying case was (1) terminated in the plaintiff's favor, (2) prosecuted without probable cause, and (3) initiated with malice. (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871 (Sheldon Appel).)Appellants challenge the trial court's findings that the fourth cause of action in Urbina II, which alleged a conspiracy to obstruct justice under section 1985, subdivisions (2) and (3), was brought without probable cause and with malice.
A. Probable Cause
The existence of probable cause is a question of law requiring a determination whether, in light of the facts known to counsel, any reasonable attorney would have believed the claim to be legally tenable. (Sheldon Appel, supra, 47 Cal.3d at p. 886.) A claim is not supported by probable cause if it relies upon facts that are not reasonably believed to be true, or if it seeks recovery upon a legal theory that is untenable under the known facts. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 164-165.)
Section 1985, subdivision (2) consists of two clauses. The first proscribes conspiracies to interfere with the administration of justice in the federal courts. (Kush v. Rutledge (1983) 460 U.S. 719, 724-725.) The second proscribes conspiracies to obstruct justice in a state court with the intent to deprive a person or class of persons of the equal protection of the laws. (Ibid.) Section 1985, subdivision (3) begins with an additional proscription against conspiracies to deprive a person or class of persons of "equal protection of the laws" and "equal privileges and immunities under the laws." (Ibid.) It ends with a remedial provision creating a cause of action for damages to those harmed by any of the conspiracies prohibited in section 1985. (Id. at p. 726, fn. 9.) The second clause of subdivision (2) and the first clause in subdivision (3) require a showing of a "class-based, invidiously discriminatory animus." (Id. at pp. 726.)
Section 1985, subdivision (2) reads in full: "If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws."
Section 1985, subdivision (3) reads in full: "If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators."
1. Witness Intimidation
Factually, the complaint in Urbina II alleged that Callanan, Dr. Orner, and unidentified others conspired to "induce or encourage [Carson] to change or alter her findings so as to exonerate, rather than incriminate, the defendant police officers in Urbina I." It alleged that wrongful acts in furtherance of the conspiracy occurred when Callanan and Dr. Orner contacted Carson without notice to Urbina and obtained confidential medical information in violation of medical privacy laws. As a result, it alleges, Carson was induced to modify her original evaluation of Urbina's physical condition. The complaint did not allege any facts indicating that Urbina was a member of a class that the defendants invidiously discriminated against, as required for an equal protection claim under section 1985.
Based on the factual allegations in the complaint, the trial court considered whether appellants had probable cause to bring an action under the first clause of subdivision (2), which prohibits conspiracies to "deter by force, intimidation, or threat, any party or witness in any court of the United States . . . from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, etc." A civil conspiracy requires the existence of an agreement to violate constitutional rights, which may be inferred from circumstantial evidence, such as acts taken in furtherance of the conspiracy. (Mendocino Environmental Center v. Mendocino County (9th Cir. 1999) 192 F.3d 1283, 1301-1302.) To be liable as a conspirator, a person must share the common objective of the conspiracy. (United Steelworkers of America v. Phelps Dodge Corp. (9th Cir. 1989, en banc) 865 F.2d 1539, 1540-1541.) "Allegations of witness intimidation under § 1985(2) will not suffice for a cause of action unless it can be shown the litigant was hampered in being able to present an effective case." (Blankenship v. McDonald (9th Cir. 1999) 176 F.3d 1192, 1196.)
Appellants' conspiracy claim was based on the theory that Dr. Orner's report reflected significant differences from Carson's initial evaluation of Urbina, and that these differences were favorable to the Urbina I defendants. The trial court found that theory unreasonable. We agree.
The medical screening form stated that Urbina complained of a "sore chest" and "puffed] as if he's out of breath." Appellant Cook testified that he intended to use this part of the form to impeach the arresting officers' assertions that Urbina had not complained of or exhibited signs of any injury at the time of his arrest. Cook testified further that he assumed Carson would have no independent recollection of Urbina, and that he would be able to use the form at trial to impeach the officers without any additional explanation as to what the nurse's notes meant. But the form did not attribute Urbina's symptoms to an injury. It did not indicate that Carson observed any rib fracture or external trauma, or that Urbina complained of having been hit during his arrest. On the form, Carson included an explanation that Urbina was out of breath because he had been pursued by the arresting officers and noted that he denied having respiratory problems. The fact that Carson did not refer Urbina to immediate medical care also suggests that she did not believe his complaints were serious.
Thus, Carson's reported statement to Dr. Orner that she did not notice symptoms of rib fracture, pneumothorax or pulmonary distress unrelated to Urbina's being out of breath after the police chase was not inconsistent with her initial evaluation. It was unrealistic to presume that the form unequivocally bolstered Urbina's case and to expect that, if it was introduced at trial, Carson would provide no explanation for what she did or did not include. Additionally, nothing prevented appellants from presenting expert testimony to challenge Carson's evaluation of Urbina or Dr. Orner's conclusion that, because Carson did not notice any symptoms of rib fracture and pneumothorax, Urbina did not have those injuries at the time of the arrest.
Some of the statements attributed to Carson in the experts' reports appear to have been based on information contained on a page of the medical screening form that is not in the record on appeal. We cannot speculate on the contents of the form; appellants have a duty to provide an adequate record on appeal or risk an adverse resolution. (Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660.)
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Because it was premised on their belief that Carson materially modified her initial evaluation of Urbina, the conspiracy theory was factually untenable. Appellants conceded they had no actual evidence that any force, threat, or intimidation had been used against Carson, and the allegation that Carson was subtly pressured, induced or encouraged to modify her initial evaluation derived solely from their belief that she did so. Their contention that the only possible reason for contacting Carson was to pressure her shared the same flawed premise.
Appellants' arguments that the court did not allow them to explore at greater length the motives of Callanan and Kern County counsel Thomson for contacting Carson without notice to Urbina, or to elicit testimony that ex parte contacts of medical providers are unheard of, do not establish reversible error. Callanan stated that he wanted to test Carson's "knowledge and competency" as to the required jail medical screening procedure because, if Urbina was injured, he should have been provided medical care. When asked about this testimony a month later, Callanan denied having said that Urbina I included a claim for failure to provide medical care and clarified that he did not know that no such claim was at issue in Urbina I. The court interrupted Robert Mann, who represented the Mann & Cook partnership, when he started to question Callanan about what was alleged in Urbina I. We find no abuse of discretion. The complaint in Urbina I spoke for itself, and questioning Callanan about his understanding of the allegations in the complaint was a circuitous way to impugn his motive for contacting Carson, as to which he already had testified.
Thomson testified that the purpose of the contact with Carson was to check the accuracy of the information on the form; he did not believe he needed to notice a deposition of Carson, whom he considered his "non-designated expert." The court interrupted Mann when he asked Thomson whether an ex parte contact with a health care provider would be proper. We see no abuse of discretion in the court's interruption of a hypothetical that called for a legal conclusion on a collateral issue. Whether or not the ex parte contact with Carson was procedurally proper, it did not rise to a section 1985 violation unless Carson was forced or intimidated to change her evaluation of Urbina in order to prevent him from presenting an effective case. There is no showing that further cross-examination of these witnesses would have revealed that she was.
2. Violation of Equal Protection
Appellants argue they did not have to allege a violation of the first clause of subdivision (2) in order have a cause of action under section 1985 because they alleged a conspiracy in violation of section 1983 and the equal protection provisions in section 1985, subdivisions (2) and (3). The fourth count in Urbina II tracked the language of the second clause of subdivision (2), stating that the defendants "conspired for the purpose of impending [sic], hindering, obstructing, or defeating, the due course of justice in plaintiff's civil lawsuit, Urbina I, with the intent to injure plaintiff in his property for attempting to enforce his right to equal protection of the laws, thereby giving rise to a claim under 42 U.S.C. § 1985 (2) & (3)." Included within the count was a citation to Bell v. City of Milwaukee (7th Cir. 1984) 746 F.2d 1205 (Bell), overruled on another ground in Russ v. Watts (7th Cir. 2005) 414 F.3d 783, 788.
In their reply brief on appeal, appellants argue that respondent abandoned his claim that there was no probable cause to support an equal protection violation because he did not bring up this issue at trial and did not object to the trial court's failure to address it in the tentative statement of decision. Because the abandonment argument was raised for the first time in appellants' reply brief, we deem it forfeited. (See Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 427-428.) In their objections to the tentative statement of decision, appellants themselves advised the trial court that it did not address the applicability of Bell. A party's objection to omissions or ambiguities in a tentative statement of decision makes inapplicable the usual presumption in favor of the judgment. (Code Civ. Proc., § 634; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) We cannot imply findings in respondent's favor on an issue omitted from the statement of decision. But appellants are incorrect in suggesting that we should instead imply findings in their own favor.
Rather, we consider and reject appellants' contention that Bell provides probable cause to support a conspiracy theory under section 1983 or the equal protection provisions of section 1985. Bell dealt with a conspiracy to cover up a police shooting of a Black man. The officers involved in the shooting eventually admitted they falsely claimed to have acted in self-defense, and there was evidence that a detective participated in the cover-up by lying at the inquest. (Bell, supra, 746 F.2d at pp. 1222-1223, 1255-1258.) Racist remarks made by an officer involved in the shooting and threats to the victim's family attributed to the detective established that the conspiracy was motivated by a racial animus. (Id. at p. 1259.) The conspiracy impeded a wrongful death action filed in state court, where after an initial mistrial, the defendant City offered the victim's father a token settlement, and the case was dismissed on the merits. (Id. at p. 1223.) The court held that the officers and the detective violated the family members' due process right of access to the courts under section 1983, and because of the racial animus involved, it found that the conspiracy violated the equal protection provisions of section 1985 as well. The chief of police was separately found liable for failing to prevent the conspiracy (42 U.S.C. § 1986). (Id. at 1258, 1260-1263.) The Seventh Circuit later limited Bell to its facts because the victim's family had no independent knowledge of the shooting. (See Thompson v. Boggs (7th Cir. 1994) 33 F.3d 847, 852-853 [plaintiff was not deprived of right of access to courts because he "was personally involved in the incident and thus had a firsthand knowledge of all the facts and circumstances surrounding his arrest"].)
There are several reasons why Bell does not render the conspiracy allegations in this case legally tenable. First, appellants' theory that the defendants in Urbina II conspired to obstruct justice in Urbina I was premised on allegations we have found insufficient to state a claim under the first clause in subdivision (2) of section 1985. Second, Urbina I was a federal case, and the second clause in subdivision (2) does not apply to claims of obstruction of justice in federal court. (See Kush v. Rutledge, supra, 460 U.S. at pp. 724-725.) Third, the complaint in this case contained no allegations of racial or other class-based invidiously discriminatory animus, as required to establish an equal protection violation. Even though this deficiency was raised in respondent's motion to dismiss Urbina II, in opposition appellants failed to identify the protected class to which Urbina belonged. For the first time on appeal, they propose that anyone who relies on the government for his or her health care is a member of a protected class because there are no limitations on what may constitute a protected class under section 1985. This broad proposition is untimely. It also is untenable since the United States Supreme Court has taken a very narrow view of the classes protected under section 1985. (See United Brotherhood of Carpenters & Joiners of Am. v. Scott (1983) 463 U.S. 825 [holding that "it is a close question whether section 1985(3) was intended to reach any class-based animus other than animus against Negroes and those who championed their cause," and rejecting class of non-union employees under section 1985].) Similarly, the Ninth Circuit applies the equal protection provisions of section 1985 only to suspect or quasi-suspect classifications or classes entitled to special protection under congressional legislation. (Sever v. Alaska Pulp Corp. (9th Cir. 1992) 978 F.2d 1529, 1536.) Appellants do not suggest that Urbina was discriminated against based on race or some other immutable or protected characteristic. They have failed to establish that they had probable cause for alleging a conspiracy in violation of the equal protection provisions of section 1985.
B. Malice
Although the existence of probable cause is determined objectively, the element of malice goes to subjective intent. (Sheldon Appel, supra, 47 Cal.3d at p. 874.). It may be established through evidence that the defendant bore "actual hostility or ill will toward the plaintiff," or that the proceedings were instituted largely for an improper purpose-for instance, to force a settlement regardless of the merits of the claim. (Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1157.) When the claim is objectively untenable, a defendant attorney's investigation and research may be relevant to whether the attorney acted with malice. (Sheldon Appel, at p. 883.)
The trial court found that appellants' antipathy to Callanan and desire to harm him professionally were motivating factors in including the conspiracy claim against him in the Urbina II complaint. This finding is supported by substantial evidence. Appellants and Callanan had long been on opposite sides in police misconduct cases brought by appellants, in which respondent testified as an expert witness for the police. Appellant Cook believed that Callanan was a biased expert, who would "find a way to support his client's position no matter what." His partner Robert Mann shared that belief. This belief colored appellants' perception of Callanan's contact with Carson. Appellants conceded Callanan's report gave no indication that Carson had changed her initial evaluation of Urbina. Only in Dr. Orner's report did appellants locate statements by Carson they perceived as inconsistent with her initial evaluation, but there was nothing in the report that implicated Callanan in this perceived inconsistency. Cook's initial reaction to Callanan's report was that Callanan wrongfully accessed Urbina's medical information without notice to Urbina. Once Dr. Orner's report came out, his view of the experts' ex parte contact with Carson changed from a violation of medical privacy to a conspiracy to obstruct justice, in which Callanan's presumed role was to explain to Carson, a jail nurse employed by Kern County, that her employer had been sued and to remind her "which side, in effect, her bread was buttered on." But because neither Callanan's nor Dr. Orner's report, nor any other evidence, supported the inference that Callanan had pressured Carson, however subtly, to change her evaluation of Urbina, appellants were not objectively justified in inferring that he had done so.
The trial court found evidence of appellants' desire to harm Callanan professionally in the testimony of attorney Lee A. Wood, who used Callanan as an expert witness. Wood testified that he was at appellants' office when either Cook or someone else at the office stated that Callanan had been sued for doing something unethical. Appellants argue that the litigation privilege precludes inferring malice from these statements. The litigation privilege precludes '"subsequent derivative actions for communications made in the context of judicial proceedings,'" even when the communications are the product of malice. (Olsen v. Harbison (2010) 191 Cal.App.4th 325, 333.) But respondent's malicious prosecution does not derive from the statements appellants made to Wood. The evidentiary value of these statements is not that they themselves were actionable, but that they tend to support the inference that the Urbina II action was brought against Callanan in order to discredit him as an expert.
The trial court also found that appellants made no attempt to further investigate their suspicions of a conspiracy to obstruct justice in Urbina I. Appellants believe they were justified in filing Urbina II without any additional investigation because, they claim, that strategy worked for them in another case. In Gonzales v. Spencer (9th Cir. 2003) 336 F.3d 832, 834-835 (Gonzales),appellants successfully argued that the attorney for Los Angeles County in the underlying civil rights case had accessed their client's juvenile records without authorization from the juvenile court. Although the complaint filed in Gonzales contained some pro forma allegations of a civil conspiracy, the Ninth Circuit's decision does not address these allegations, and we have no evidence that appellants' client recovered anything based on them. Notably, the complaint in Gonzales did not allege a conspiracy to obstruct justice in violation of section 1985. Thus, appellants' success in Gonzales, on different facts and law, did not justify alleging a conspiracy to obstruct justice in Urbina II without further investigation and research.
Because the conspiracy claim was objectively untenable, appellants' lack of factual investigation becomes relevant to the issue of malice. (Sheldon Appel, supra, 47 Cal.3d at p. 883.) Appellants argue that they did not depose Carson or either of the two experts in Urbina I before filing Urbina II against them because those persons would not have admitted their culpability. Appellants preferred to proceed on their conspiracy theory in a vacuum, without testing its factual or legal validity. As we have noted, the conspiracy count in Urbina II was based solely on Bell, supra, 746 F.2d 1205. At trial, Cook provided some additional case authority in support of the medical privacy claims in the complaint, but none specifically in support of the section 1985 conspiracy count. Mann provided further evidence of appellants' cavalier approach to this count when he testified that he had been unable to figure out exactly which claim the court in Bell found to have been adequately alleged.
Mann testified Dr. Orner's report reduced the value of Urbina I, and appellants expected to recover substantial damages in Urbina II to make up for it. Since Urbina I was resolved on an offer of compromise, it is unclear how it would have fared had it been tried. But at the time Urbina II was filed, Urbina was not prevented from effectively prosecuting his excessive force claim in Urbina I because he could still challenge Carson's initial failure to note all his symptoms or to interpret them correctly. Appellants' strategy of suing two experts and a potential witness while the underlying lawsuit was still pending supports the inference that they were sued for an improper purpose—to influence their participation in the underlying suit independently of the merits of the conspiracy claim alleged against them.
We conclude that the trial court was justified in finding that the conspiracy claim against Callanan in Urbina II was brought with malice.
III
Appellants contend the trial court should have imposed discovery sanctions for Callanan's failure to respond to requests for production of business records relevant to his damages. The court allowed Callanan's expert economist to testify based on records that were not produced in discovery. It denied appellants' motion to strike Callanan's testimony that his increased income stream since 2007 was due to cases on which he had been hired before the filing of Urbina II. The court declined to impose discovery sanctions because appellants had not moved to compel discovery. Such a motion is a prerequisite to imposing sanctions unless it is futile, as when the withheld documents allegedly have been stolen. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545-1546 (Vallbona).) Appellants analogize Callanan's responses to their discovery requests to the ones in Vallbona. But Callanan' response that documents were not in his custody, control, or possession or had been already produced did not indicate that their production could not be compelled. Callanan could have been ordered to use reasonable efforts to obtain the documents not in his personal possession or to produce again the documents he incorrectly claimed to have produced. Moreover, in awarding damages the court specifically refused to credit any testimony about Callanan's economic loss except that of attorneys Wood and Thomson, who testified that they stopped hiring him because of Urbina II.
The plaintiff in a malicious prosecution case may recover damages for attorney fees and costs spent in the underlying action, as well as for emotional distress and injury to reputation "because of groundless allegations made in pleadings which are public records." (Sagonowsky v. More (1998) 64 Cal.App.4th 122, 132.) Compensatory damages may be awarded and may be based on reasonable estimates if they cannot be accurately measured. (Davis v. Local Union No. 11, Internat. Etc. of Elec. Workers (1971) 16 Cal.App.3d 686, 697 (Davis).) Punitive damages may be awarded on a finding of malice. (Civ. Code, § 3294.) The amount of damages is determined by the trier of fact and reexamined by the trial court upon a motion for a new trial; it will be affirmed on appeal absent passion or prejudice. (Davis, at p. 697.) A claim of excessive or inadequate damages involving the credibility of witnesses, conflicting evidence, or other factual questions must first be made in a motion for a new trial. (County of Los Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.App.4th 1108, 1121.)
The trial court awarded the following damages: $6,582 in attorney fees and costs, $20,000 for pain, suffering and humiliation, $57,000 in past economic damages, and $15,000 in punitive damages. Appellants filed objections to the statement of decision but no new trial motion. Objections to the statement of decision are allowed only to correct omissions and ambiguities in the statement of decision. (Code Civ. Proc, § 634). The trial court repeatedly told appellants that their objections went to the merits of the decision. It did not say it was treating the objections as a motion for a new trial. With only select citations to the record, appellants challenge aspects of the damage award that involve issues of credibility and conflicting evidence, which are within the province of the trial court. We do not resolve such issues on appeal. (Jamison v. Jamison (2008) 164 Cal.App.4th 714, 719-720.) Thus, it was for the trial court to resolve whether Callanan lost business as a result of Urbina II, or whose testimony to credit regarding the value of the business he lost.
Appellants claim the trial court failed to apportion damages to the conspiracy cause of action. The trial court expressly found that Callanan suffered "almost entirely" from that cause of action. Contrary to appellants' representations that there was no evidence to support such a finding, when read in context Wood's testimony was that he stopped hiring Callahan after learning about the conspiracy allegations. The court chose reasonable estimates for Callanan's business losses based on Wood's and Thomson's testimony. It awarded a lower amount of attorney fees and costs than the $10,000 to $15,000 Callanan claimed to have expended at trial. We see no reason to reverse the award.
DISPOSITION
The judgment is affirmed. Respondent to have his costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.