Opinion
B293942
07-02-2020
JONATHAN C. ROSEN, et al., Plaintiffs and Appellants, v. DALE REICHENEDER, et al., Defendants and Respondents.
WLA Legal Services, Steven Zelig, for Plaintiffs and Appellants. Joyce Crucillo for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). (Los Angeles County Super. Ct. No. BC690062) APPEAL from an order of the Superior Court of Los Angeles County, William D. Stewart, Judge. Affirmed. WLA Legal Services, Steven Zelig, for Plaintiffs and Appellants. Joyce Crucillo for Defendants and Respondents.
INTRODUCTION
Appellants Jonathan Rosen, JCR Law Group, Inc., and Law Offices of Jonathan C. Rosen (collectively, Rosen) sued Respondents Dale Reicheneder and the Reicheneder Law Group (collectively, Reicheneder), James Moorhead, and Arturo Aguilar for malicious prosecution of an underlying legal malpractice case against Rosen. In the underlying malpractice case, Aguilar, represented by Reicheneder, claimed his former lawyer, Rosen, breached the standard of care while defending Aguilar in a juvenile delinquency case. Rosen appeals from an order granting a special motion to strike the malicious prosecution complaint under Code of Civil Procedure section 425.16 (i.e., an anti-SLAPP motion). We affirm.
All further undesignated statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
We are acquainted with the underlying legal malpractice case, having recently issued an unpublished opinion in that case. (Rosen v. Aguilar (Mar. 13, 2020, B288207) [nonpub. opn.] (Rosen I).) We borrow much of our description of both the malpractice case and the juvenile delinquency case from our earlier opinion.
A. Initial Juvenile Delinquency Action
In a juvenile delinquency case entitled People of the State of California v. Aguilar, Case No. PJ49788, Aguilar was accused of committing multiple counts of forcible lewd conduct on a minor in violation of Penal Code sections 288a, 288b, and 286, subdivision (c)(2). (Rosen I, supra, B288207.) Aguilar was a minor at the time the crimes were committed, but an adult when arrested. The prosecution moved to have the case heard in the adult criminal courts. Aguilar retained Rosen, who negotiated a "plea agreement" that kept the case in juvenile court. (Ibid.) Based on Rosen's advice, Aguilar entered into an agreement whereby he admitted to violating Penal Code section 288b, was detained for a year in County Jail, and ordered to complete a probationary term. After Aguilar completed his jail time and probation, the juvenile court sealed Aguilar's records under Welfare and Institutions Code section 786. (Ibid.)
Aguilar contends he was 11 years old when the crime was committed; Rosen argues Aguilar was at least 14.
Aguilar contends his godfather, James Moorhead, later convinced a prosecutor that Aguilar was only 11 at the time the crime was committed, "the charge was dropped" to section 288a as a result, and the court ended Aguilar's probationary term.
Welfare and Institutions Code section 786, subdivision (a), states in part: "If a person who has been alleged or found to be a ward of the juvenile court satisfactorily completes (1) an informal program of supervision pursuant to Section 654.2, (2) probation under Section 725, or (3) a term of probation for any offense, the court shall order the petition dismissed. The court shall order sealed all records pertaining to the dismissed petition in the custody of the juvenile court, and in the custody of law enforcement agencies, the probation department, or the Department of Justice."
B. Underlying Malpractice Action
Aguilar, represented by Reicheneder, later filed a complaint against Rosen for malpractice. (Rosen I, supra, B288207.) Aguilar alleged Rosen "persuade[d] . . . Aguilar to accept what was described to [Aguilar] as a 'plea' as to a false charge, resulting in . . . Aguilar remaining in [custody] for another year." (Ibid.) Aguilar further alleged his "family continued pursuing the matter, ultimately proving the charge was incorrect, resulting, as predicted, in the court terminating jurisdiction." (Ibid.)
Rosen filed a demurrer to Aguilar's complaint, arguing the case should be dismissed because "Aguilar is unable to plead his actual innocence and the overturning of his conviction as required in criminal malpractice matters." (Rosen I, supra, B288207.)
The doctrine of "actual innocence" has two parts. First, when a former criminal defendant sues his or her attorney for legal malpractice resulting in conviction, the former defendant's actual innocence of the underlying criminal charges is a necessary element of the cause of action. (Wiley v. County of San Diego, (1998) 19 Cal.4th 532, 545) (Wiley.)) Second, the "plaintiff must obtain postconviction relief in the form of a final disposition of the underlying criminal case — for example, by acquittal after retrial, reversal on appeal with directions to dismiss the charges, reversal followed by the People's refusal to continue the prosecution, or a grant of habeas corpus relief — as a prerequisite to proving actual innocence in a malpractice action against former criminal defense counsel." (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1205, fn. omitted (Coscia).)
We discuss the actual innocence doctrine infra, when — in our review of the ruling on the anti-SLAPP motion — we consider whether Rosen has demonstrated that Respondents brought the underlying malpractice claim without probable cause.
Rosen filed a demurrer, arguing the actual innocence doctrine applied to Aguilar's malpractice case, but Aguilar could not plead actual innocence for two reasons. (Rosen I, supra, B288207.) First, per Rosen, Aguilar confessed to the crime and also entered a plea. Second, the court in Aguilar's juvenile delinquency case did not dismiss the case because the charge was overturned or there was a post-conviction exoneration. Rather, the court sealed the case pursuant to Welfare and Institutions Code section 786 because Aguilar satisfactorily completed probation. (Ibid.)
Judge John P. Doyle, to whom the malpractice case was then assigned, heard a motion to file documents from Aguilar's juvenile file in support of Rosen's demurrer. (Rosen I, supra, B288207.) The court denied the motion, however, because the documents had been ordered sealed by the juvenile delinquency court and Rosen (as of that time) had not secured an order unsealing them. The documents were returned to Rosen and the court overruled the demurrer, finding Aguilar sufficiently pled "actual innocence" by alleging his family "'continued pursuing the matter, ultimately proving the charge was incorrect, resulting, as predicted, in the court terminating jurisdiction.'" (Ibid.)
Rosen answered the complaint, and filed a motion for judgment on the pleadings, again arguing Aguilar did not plead facts that he was actually innocent or had obtained post-conviction relief. (Rosen I, supra, B288207.) In support of his motion, Rosen filed a request for judicial notice attaching an order, signed by the juvenile delinquency judge, granting Rosen's request for disclosure of Aguilar's juvenile case file. (Ibid.)
On October 28, 2016, the court held a hearing on various motions, including the motion for judgment on the pleadings. Judge Ralph C. Hofer, to whom the case was then assigned, granted Aguilar's motion to file a second amended complaint to add causes of action for fraud, negligent misrepresentation, conversion, and unjust enrichment, and continued Rosen's motion for judgment on the pleadings. The court also stayed the matter (with the exception of permitting Rosen to file a demurrer to any second amended complaint filed) to allow Aguilar's criminal counsel, Michael Cavalluzzi, to "address issues raised with respect to plaintiff's ability to plead factual innocence[] or any other matters Mr. Cavalluzzi seeks to address in the juvenile court."
"Actual innocence" was sometimes referred to as "factual innocence" in the proceedings below.
Aguilar filed a second amended complaint and attached Cavalluzzi's declaration. Cavalluzzi declared he had been retained by Aguilar to file a "Petition for a Finding of Factual Innocence" in the juvenile delinquency matter. He further stated he needed the complete juvenile court file to determine preliminary issues, including "[w]hether the court would entertain a finding of factual innocence after the court records have been sealed. Pursuant to Welfare and Institutions Code [s]ection 781, once the court has ordered the record of a juvenile delinquency case sealed, the proceedings in the case shall be deemed never to have occurred. This would appear to render a finding of factual innocence unnecessary."
At a later hearing, Judge Hofer sustained Rosen's demurrer to the second amended complaint without leave to amend, and dismissed the malpractice action. In support of the demurrer, Rosen again argued Aguilar did not plead facts that he was actually innocent or had obtained post-conviction relief. At the hearing, Judge Hofer noted that no one had presented the court with legal authority that the factual innocence doctrine does not apply to a juvenile who seeks to bring a malpractice action after a petition alleging criminal conduct had been sustained by the juvenile court. In response, Cavalluzi stated, "I believe that it does apply, Your Honor. I believe that the factual innocence doctrine still does apply, and there's a mechanism by which you can find a minor or former minor factually innocent." After this concession, Judge Hofer noted there had been no finding of actual innocence, and Aguilar's counsel had not requested a further delay to petition the juvenile court for exoneration or a finding of actual innocence. In his written order, Judge Hofer held the actual innocence doctrine applied to the juvenile proceedings, and further held Aguilar's juvenile records demonstrated the juvenile court terminated jurisdiction only because Aguilar had successfully completed all terms and conditions of probation, not because Aguilar actually was innocent. Based on his ruling sustaining the demurrer without leave to amend, Judge Hofer ultimately dismissed the underlying malpractice claim and entered judgment in favor of Rosen. Aguilar did not appeal the dismissal.
This ruling rendered Rosen's motion for judgment on the pleadings moot.
The court took judicial notice of records in Aguilar's juvenile file and granted Rosen's motion to file the documents under seal.
Rosen later filed a motion for attorneys' fees under section 128.5, asserting Aguilar's complaint was frivolous, and Aguilar and his counsel engaged in bad faith conduct throughout the litigation. (Rosen I, supra, B288207.) In particular, Rosen argued Aguilar's claims were frivolous because the law "is very well established that in order for a plaintiff to plead any cause of action against an attorney arising out of a representation in a prior criminal matter, the [p]laintiff must plead and prove that" he or she was "factually innocent of the underlying crimes," yet "[Aguilar] never had his conviction set aside." (Ibid.) Rosen further contended Aguilar's course of conduct was to unreasonably delay the resolution of the case by, among other things, repeatedly claiming that he was seeking to have his conviction set aside, and requesting continuances to brief whether the juvenile court's order unsealing his juvenile file was invalid. Finally, Rosen argued Aguilar engaged in bad faith litigation tactics throughout the proceeding, pointing to Aguilar's allegation in his second amended complaint that Rosen has been subject to discipline by the State Bar, which Rosen noted is unfounded, and Aguilar's "consistent and protracted tactic of harassing [Rosen] through the discovery process." (Ibid.)
Section 128.5, subdivision (a) provides the "trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay." A bad faith action is "'frivolous'" if it is "totally and completely without merit or for the sole purpose of harassing an opposing party." (§ 128.5, subd. (b)(2).)
Judge Hofer denied the sanctions motion, finding Aguilar's action was not "totally and completely without merit" because whether the actual innocence requirement applied to a case alleging defense counsel in a juvenile delinquency proceeding committed malpractice was a matter of first impression. (Rosen I, supra, B288207.) Judge Hofer said, "Here, while the court has ultimately determined that the actual innocence and post-conviction exoneration elements apply to juvenile matters there was a colorable argument asserted by plaintiff, and also attempts evidently being considered with respect to obtaining post-conviction relief, with the court permitting a continuance to so pursue . . . . Moreover, the moving papers, and, indeed, the demurrer, did not cite to any clear legal case authority in which a court did in fact apply the factual innocence requirement in connection with a sealed juvenile proceeding, which would have rendered the continued pursuit of plaintiff's position in this matter unsupported . . . ." (Ibid.) Judge Hofer also explained the "motion does not support . . . these various matters by explaining which of the fees sought here were incurred as a result of such conduct, and, as argued in the opposition, it appears that much of that conduct occurred during discovery efforts, and should have been addressed through the sanctions available for discovery abuses at the time they allegedly occurred." (Ibid.)
We affirmed this ruling in our previous unpublished opinion, holding the trial court neither abused its discretion nor committed legal error. (Rosen I, supra, B288207.) We held "[t]he trial court was well within its discretion in finding Aguilar's complaint presented an issue of first impression, i.e., whether the actual innocence doctrine applies to juvenile delinquency matters involving a sealed record. As explained in Cavalluzzi's declaration, Welfare and Institutions Code section 781 states '[o]nce the court has ordered the person's records sealed, the proceedings in the case shall be deemed never to have occurred . . . .' (Welf. & Inst. Code, § 781, subd. (a)(1)(A).) Thus, Cavalluzzi opined that section 781 'would appear to render a finding of actual innocence unnecessary.' The fact the court ultimately determined the actual innocence doctrine applies to juvenile proceedings, and sustained Rosen's demurrer, does not render Aguilar's complaint frivolous." (Ibid., fns. omitted.)
C. Malicious Prosecution Action and the Anti-SLAPP Motion
Following dismissal of the underlying malpractice case, but before we issued our opinion in Rosen I, Rosen filed a complaint alleging a single cause of action for malicious prosecution against Reicheneder, Moorhead, and Aguilar. Reicheneder filed an anti-SLAPP motion in response.
Judge William D. Stewart, to whom the case was assigned, issued a lengthy and well-reasoned tentative opinion granting the anti-SLAPP motion. After hearing argument, Judge Stewart adopted his tentative ruling as the order of the court. This appeal followed.
DISCUSSION
"We review de novo a trial court's decision on an anti-SLAPP motion. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) The anti-SLAPP statute requires a two-step process: 'At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. . . . If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken.' (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) In making these determinations the court considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' (§ 425.16, subd. (b)(2).)" (Briganti v. Chow (2019) 42 Cal.App.5th 504, 508) (Briganti).)
A. The Malpractice Complaint Arose from Protected Activity
"The anti-SLAPP statute defines protected activities as: '(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.' (§ 425.16, subd. (e).)" (Briganti, supra, 42 Cal.App.5th at p. 508.)
Our Supreme Court has determined that malicious prosecution suits, which by their very nature allege the defendant committed a tort by petitioning for judicial relief, are not categorically exempt from the anti-SLAPP statute; they arise from protected activity (filing a lawsuit) and therefore satisfy the first step of the anti-SLAPP analysis. (Jarrow Formulas, Inc. v. La Marche (2003) 31 Cal.4th 728, 734-739.) Rosen concedes this point, saying he "does not contest that this case is subject to the anti-SLAPP statute." Thus, the first step in the anti-SLAPP analysis is satisfied.
B. Rosen Did Not Carry His Burden to Show a Probability of Prevailing on His Malicious Prosecution Claim
"At the second anti-SLAPP step, the plaintiff bears the burden of demonstrating a probability of prevailing on each claim arising from protected activity. [Citation.] A 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.' [Citation.] Under the '"summary-judgment-like procedure"' applicable at this step, the court 'does not weigh evidence or resolve conflicting factual claims.' [Citation.]" (Briganti, supra, 42 Cal.App.5th at p. 509.) In responding to an anti-SLAPP motion, "at least 'minimal merit'" must be shown. (Park v. Board of Trustees of California State University, (2017) 2 Cal.5th 1057, 1061.)
To win this appeal, Rosen therefore must show his malicious prosecution claim had at least minimal merit. "To prevail on a malicious prosecution claim, the plaintiff must show that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination favorable to the plaintiff; (2) was brought without probable cause; and (3) was initiated with malice. [Citation.]" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292) (Soukup)). It is undisputed on appeal, as Judge Stewart determined, that Rosen satisfied the first element, because Judge Hofer sustained Rosen's demurrer to the second amended complaint in the underlying malpractice action without leave to amend, and dismissed the case. Thus we turn to the probable cause and malice elements.
1. Rosen Has Not Demonstrated the Underlying Malpractice Suit Was Brought Without Probable Cause
"The question of probable cause is 'whether, as an objective matter, the prior action was legally tenable or not.' [Citation.] 'A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.' [Citation.]" (Soukup, supra, 39 Cal.4th at p. 292.) To make a prima facie showing sufficient to defeat the anti-SLAPP motion, Rosen was required to demonstrate that Respondents either (1) lacked probable cause to initiate the prior suit, or (2) after initiating the prior suit with probable cause, thereafter continued to prosecute it after learning they lacked probable cause. (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1037 (Paiva).)
"Unlike the malice element, which is a factual question, the issue of whether there was an absence of probable cause in bringing the prior case is a question of law to be determined by the court. [Citation.]" (Pavia, supra, 168 Cal.App.4th at p. 1018; Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 874-875 (Sheldon Appel).) "The question whether, on a given set of facts, there was probable cause to institute an action requires a sensitive evaluation of legal principles and precedents . . . [to] appreciate the distinction between a merely unsuccessful and a legally untenable claim." (Sheldon Appel, supra, 47 Cal.3d at p. 875.) The test, in a malicious prosecution case, for evaluating whether the underlying case was brought with probable cause, is "whether any reasonable attorney would have thought the claim tenable[.]" (Id. at p. 886.) This test appropriately "reflects the important public policy of avoiding the chilling of novel or debatable legal claims." (Id. at p. 885) Thus, when applying the test "a court must properly take into account the evolutionary potential of legal principles. [Citation.]" (Id. at p. 886.) "An action is deemed to have been pursued without probable cause if it was not legally tenable when viewed in an objective manner as of the time the action was initiated or while it was being prosecuted." (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1402.)
Rosen contends the underlying malpractice case lacked probable cause because Aguilar was required to — but could not — prove that he was actually innocent of the crime and had obtained a post-conviction exoneration. While proof of those elements assuredly would be required if Aguilar had been prosecuted and convicted in an adult criminal court (see, e.g., Coscia, supra, 25 Cal.4th at pp. 1201-1202), Aguilar was a child at the time of the offense and was charged in the juvenile delinquency court. As Judges Hofer and Stewart observed, Rosen was unable to point the lower court to any legal authority standing for the proposition that the actual innocence doctrine applies to a malpractice action brought against a defense lawyer in a juvenile delinquency case. Nor has Rosen identified any such authority on appeal. As both judges also noted, the issue appears to be one of first impression.
We need not decide whether the actual innocence doctrine should apply to such claims. The issue likely will be decided at some point in the future by an appellate court, and to do so that court will be required to balance both policy and pragmatic considerations. In Wiley, a divided Supreme Court concluded, "[f]or reasons of policy and pragmatism," that "[w]hen a former criminal defendant [in an adult court] sues for legal malpractice," actual innocence is "a necessary element of the cause of action[.]" (Wiley, supra, 19 Cal.4th. at p. 534.) At the time, whether actual innocence was an element of such a claim was an open question in California, and the court noted that various states answered the question differently. (Id. at pp. 536-538.) When considering whether to extend the actual innocence requirement to other types of proceedings, California courts also have weighed application of the various policy and pragmatic factors underlying it. (See, e.g., Brooks v. Shemaria (2006) 144 Cal.App.4th 434, 442-443 (Brooks); Khodayari v. Mashburn (2011) 200 Cal.App.4th 1184, 1192-1196 (Khodayari)).
In Brooks, the court considered whether the actual innocence requirement applied to a claim for professional negligence arising from an attorney's representation in proceedings for a return of seized property, which occurred after the defendant's conviction and sentence. (Brooks, supra, 144 Cal.App.4th at p. 441.) The court reasoned, "the issue . . . should not be resolved in a formulaic manner . . . . Rather, we must look to the policy considerations underlying the actual innocence requirement to see whether they justify application of the requirement here." (Id. at p. 442.) The Brooks court articulated five policy considerations. "First, we should not permit a guilty defendant to profit from his or her own wrong. [Citation.] Second, to allow guilty defendants to shift their punishment to their former attorneys would undermine the criminal justice system. [Citation.] Third, 'a defendant's own criminal act remains the ultimate source of his predicament irrespective of counsel's subsequent negligence.' [Citation.] Fourth, a guilty defendant who is convicted or given a longer sentence as a result of counsel's incompetence can obtain postconviction relief on that basis; in contrast, 'a civil matter lost through an attorney's negligence is lost forever.' [Citation.] Fifth, there are formidable practical problems with criminal malpractice litigation, including the difficulty of quantifying damages and the complexity of the standard of proof, which must combine the preponderance of the evidence standard with the reasonable doubt standard applicable in a criminal trial. [Citation.]" (Id. at pp. 442-443.) In Brooks, the court concluded that "[n]one of those considerations weigh in favor of applying the actual innocence requirement . . . ." (Id. at p. 443.)
In Khodayari, a different panel of this court applied the Brooks policy considerations to conclude a plaintiff who brought malpractice and other claims against his former criminal defense attorney for allegedly causing him to be found in violation of probation must demonstrate actual innocence of the probation violations, and also obtain post-violation exoneration of those violations. (Khodayari, supra, 200 Cal.App.4th at pp. 1192-1196.) It remains to be seen how a California appellate court might resolve whether the actual innocence doctrine applies to malpractice or other tort claims by a convicted juvenile defendant against his or her former counsel. California's juvenile and adult criminal justice systems have some important differences. For example, while the adult criminal justice system focuses on punishment of offenders as well as rehabilitation, "[t]he primary goal of the juvenile justice system is to rehabilitate offenders rather than punish them. (Welf. & Inst. Code, § 202, subd. (b).) The rationale for this approach is the susceptibility of some juveniles to immature and irresponsible behavior and the greater likelihood they, as opposed to adults, will be reformed by proper guidance and treatment programs. [Citation.]" (In re R.C. (2019) 39 Cal.App.5th 302, 310.) And as noted above, the juvenile justice system provides for sealing of juvenile records, upon certain conditions, which gives certain juvenile offenders an opportunity for a clean start to their futures. Welfare & Institutions Code section 781, subdivision (a)(1)(A) provides in relevant part, "Once the court has ordered the person's records sealed, the proceedings in the case shall be deemed never to have occurred, and the person may properly reply accordingly to any inquiry about the events[.]"
Neither Rosen nor Respondents have attempted to apply the relevant policy factors articulated in Brooks to our consideration of whether the claims asserted in the underlying case were tenable. And we need not apply them on our own, because we are not deciding whether the claims were meritorious. We need only decide whether they were arguably meritorious. (Sheldon Appel, supra, 47 Cal.3d at p. 885.) It therefore is sufficient to conclude, as we do, that because (1) we are unaware of any controlling authority, (2) resolution of the issue would require consideration of various policy and pragmatic concerns, which introduces uncertainty into any forecast of how an appellate court would resolve the question, (3) there is room for debate on the issue, and (4) we are required to take into account potential evolution of the law in this area, we cannot say no reasonable attorney would have thought Aguilar's claims were tenable. (Paiva, supra, 168 Cal.App.4th at p. 1019.) That conclusion is consistent with our holding in Rosen I that Judge Hofer did not abuse his discretion, when denying Rosen's sanctions motion, by finding the underlying suit was "colorable" and not frivolous. (See Rosen I, supra, B288207.) Thus, we hold that Rosen did not carry his burden of demonstrating the underlying malpractice suit was brought or maintained without probable cause.
We have considered Rosen's argument that, even if applicability of the actual innocence doctrine to the underlying malpractice case was or is an issue of first impression, Aguilar cannot rely on an "'un-pled hidden theory of liability.'" In other words, Rosen contends "[i]n Aguilar's complaint, Reicheneder never claimed that factual innocence was not required because Aguilar was prosecuted in a juvenile proceeding. Rather, [he] simply relied on deception, i.e., that Aguilar was innocent and/or that post-conviction exoneration had been obtained." This argument is circular, however, because unless factual innocence is an element of Aguilar's claim, there was no reason to plead it.
The "deception" Rosen refers to may be the allegation in Aguilar's complaint, mentioned above, that Aguilar's "family continued pursuing the matter, ultimately proving the charge was incorrect, resulting, as predicted, in the court terminating jurisdiction." It was upon the basis of that allegation that Judge Doyle overruled Rosen's initial demurrer, but Judge Hofer later concluded it was inconsistent with the juvenile court records, at least to the extent it could be construed as a statement of actual innocence, including exoneration.
2. We Need Not Reach the Malice Element
Rosen argues at length that the underlying malpractice case lacked merit because it was initiated and prosecuted with malice. Respondents dispute this. Because we have resolved this appeal "by determining the legal question of probable cause, we need not address whether [Rosen] presented sufficient evidence to support a finding — ordinarily reserved for the trier of fact [citation] — that appellants acted with malice in prosecuting the prior suit. [Citation.]" (Paiva, supra, 168 Cal.App.4th at p. 1019, fn.6).
DISPOSITION
The order granting the anti-SLAPP motion is affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J. We concur: MANELLA, P.J. WILLHITE, J.