Opinion
G044872
01-04-2012
LARRY ROTHMAN, Plaintiff and Appellant, v. RICHARD E. MASSON et al., Defendants and Respondents.
Larry Rothman, in pro. per.; The Durst Firm and Lee Durst for Plaintiff and Appellant. Jeffrey Lewis for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 30-2010-00401504)
OPINION
Appeal from an order of the Superior Court of Orange County, Jamoa A. Moberly, Judge. Affirmed.
Larry Rothman, in pro. per.; The Durst Firm and Lee Durst for Plaintiff and Appellant.
Jeffrey Lewis for Defendants and Respondents.
Plaintiff Larry Rothman appeals an order striking his complaint for malicious prosecution. Because the trial court properly granted defendants' special motion to strike under Code of Civil Procedure section 425.16 (anti-SLAPP motion), we affirm.
Defendants include: George Shotell, Jr.; Danette Shotell; Richard E. Masson; Sanaz Farkhad; and Masson & Fatini, LLP. All statutory references are to the Code of Civil Procedure.
FACTS
Underlying Action
In January 2006, George Shotell, Jr., and Danette Shotell sued their former attorney Rothman for: (1) professional negligence; (2) breach of contract; (3) breach of fiduciary duty; (4) money had and received; and (5) constructive trust. This underlying legal malpractice case was based on Rothman's representation of the Shotells with regard to commercial lease negotiations and landlord-tenant litigation. The Shotells dismissed with prejudice the cause of action for money had and received in March 2007. In July 2008, following a jury trial, judgment was entered against Rothman in the amount of $160,163.
This court reversed the judgment in Shotell v. Rothman (Aug. 24, 2009, G040850) [nonpub. opn.] (Rothman I), due to a lack of substantial evidence supporting a finding that Rothman's alleged transactional and/or litigation negligence caused the Shotells to suffer damages.
Instant Action for Malicious Prosecution
On August 23, 2010, Rothman filed the instant action for malicious prosecution against the Shotells and lawyers who represented the Shotells in the underlying action. Rothman's complaint alleged: "Defendants knew or should have known that [Rothman] did not take any funds of [the Shotells] or collect any funds of [the Shotells] in the underlying lawsuit. All Defendants knew at or after that time that the cause of action for Money Had and Received had no merit. All Defendants continued to prosecute that cause of action until or about March 5, 2007 when Plaintiffs after threat of sanctions under . . . [s]ection 128.7, dismissed that cause of action." Rothman's complaint further alleged: "Judgment was entered in favor of [Rothman] in the underlying action on August 24, 2009. Defendants knew or should have known there was insufficient evidence to support their malpractice claim and should not have prosecuted this action."
Rothman previously filed a malicious prosecution action in March 2007, which was ultimately dismissed before the instant action was filed. The parties dispute the effect of Rothman's voluntary dismissal of this prior action, but we need not resolve this dispute to decide the issues presented on appeal.
Defendants moved to strike Rothman's malicious prosecution complaint pursuant to section 425.16. The court granted the motion to strike and awarded $5,240 in attorney fees and costs to defendants. The court then entered judgment against Rothman.
DISCUSSION
An order granting or denying a motion to strike under section 425.16 is appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).) Our review of the court's order granting defendants' anti-SLAPP motion is de novo. (Ross v. Kish (2006) 145 Cal.App.4th 188, 197.) We review the court's award of attorney fees and costs for an abuse of discretion. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1130.)
The anti-SLAPP statute "requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
Step One of the Anti-SLAPP Analysis
It is clear that Rothman's malicious prosecution claim arises from protected activity and is therefore subject to an anti-SLAPP motion. "The anti-SLAPP statute defines an '"act in furtherance of a person's right of petition or free speech"' to include 'any written or oral statement or writing made before a . . . judicial proceeding . . . .' [Citation.] The plain language of the anti-SLAPP statute dictates that every claim of malicious prosecution is a cause of action arising from protected activity because every such claim necessarily depends upon written and oral statements in a prior judicial proceeding." (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 214-215 (Daniels); see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735.)
Rothman attempts to evade this bright line rule by inventing an exception: section 425.16 is supposedly inapplicable to his complaint because the "underlying case was based upon a purely commercial transaction . . . ." We reject Rothman's argument, which is entirely based on cases that did not involve malicious prosecution actions. (See Kachlon v. Markowitz (2008) 168 Cal.App.4th 316; Garretson v. Post (2007) 156 Cal.App.4th 1508.)
Rothman does not cite or discuss section 425.17, subdivision (c), a statutory exemption from the anti-SLAPP laws of certain lawsuits "brought against a person primarily engaged in the business of selling or leasing goods or services . . . ." Regardless, this statutory exemption is inapplicable to the instant case. (See Flores v. Emerich & Fike (E.D. Cal. 2006) 416 F.Supp.2d 885, 898-899.)
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Step Two of Anti-SLAPP Analysis: Probability of Prevailing
"[A]lthough by its terms section 425.16, subdivision (b)(1) calls upon a court to determine whether 'the plaintiff has established that there is a probability that the plaintiff will prevail on the claim' (italics added), past cases interpreting this provision establish that the Legislature did not intend that a court, in ruling on a motion to strike under this statute, would weigh conflicting evidence to determine whether it is more probable than not that plaintiff will prevail on the claim, but rather intended to establish a summary-judgment-like procedure available at an early stage of litigation that poses a potential chilling effect on speech-related activities." (Taus v. Loftus (2007) 40 Cal.4th 683, 714.)
To prove malicious prosecution by defendants, Rothman must establish: (1) a favorable termination (for Rothman) of the underlying action; (2) a lack of probable cause to bring and/or continue the underlying action; and (3) malice in the initiation or continuation of the underlying action. (Daniels, supra, 182 Cal.App.4th at pp. 216, 226.)
Rothman cannot establish a probability of prevailing on the probable cause element. In Rothman I, a jury found Rothman liable for damages based on professional negligence and breach of fiduciary duty. "In the event the plaintiff in the prior action obtains judgment after trial, such judgment is, unless procured by fraud, conclusive proof that the proceedings were prosecuted with probable cause, notwithstanding the fact that the judgment is reversed on appeal." (Cowles v. Carter (1981) 115 Cal.App.3d 350, 355; see also Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1052-1053 ["'interim adverse judgment' rule" applies unless initial result was obtained by means of fraud or perjury].) Rothman did not make any showing in his opposition to the anti-SLAPP motion that the initial judgment obtained by defendants in the underlying action was obtained by fraud, perjury, or any other unfair conduct. Thus, as a matter of law, defendants had probable cause to bring the underlying action.
The only remaining wrinkle is the fact that defendants dismissed their "money had and received" count prior to trial in the underlying action. According to a declaration submitted by defendant Richard E. Masson, this count was dismissed pursuant to an agreement with Rothman that an attorney fee dispute would be submitted to the Orange County Bar Association. Rothman did not dispute or call into question the accuracy of this evidence in his opposition to the anti-SLAPP motion. Thus, Rothman has not established a probability of prevailing with regard to the "money had and received" count. (See Contemporary Services Corp. v. Staff Pro. Inc. (2007) 152 Cal.App.4th 1043, 1056-1058 [malicious prosecution plaintiffs failed to meet anti-SLAPP burden to show voluntary dismissal in underlying case reflected on the merits].)
Attorney Fees
Finally, Rothman asserts that the court's award of $5,240 in attorney fees and costs to defendants pursuant to section 425.16, subdivision (c)(1), was not reasonable. An attorney for defendants declared that she spent 11 hours drafting the motion (including the review of all pertinent pleadings and correspondence) and four hours reviewing opposition papers and drafting a reply brief. Further, she anticipated an additional hour to appear at the hearing. At an hourly rate of $325 per hour, the attorney requested $5200 in attorney fees. The court did not abuse its discretion by granting this request, as well as $40 in costs.
DISPOSITION
The court's order granting the defendants' anti-SLAPP motion and awarding attorney fees to defendants is affirmed. Defendants shall recover costs and attorney fees incurred on appeal, in an amount to be determined by the trial court.
IKOLA, J.
WE CONCUR:
O'LEARY, ACTING P. J.
MOORE, J.