Albrecht v. Ostler
Filed 2/6/13 Albrecht v. Ostler CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
W.E. JON ALBRECHT,
Plaintiff
and Respondent,
v.
BRIAN CHARLES OSTLER, SR. et al.,
Defendants
and Appellants.
E054088
(Super.Ct.No.
RIC1101087)
OPINION
APPEAL from the Superior
Court of
County. Paulette
Durand-Barkley, Temporary Judge (pursuant to Cal. Const., art. VI, § 21),
and Jacqueline C. Jackson, Judge.
name="_ftnref1" title="">[1] Reversed.
Peter Sunukjian and Matthew J.
Rumishek for Defendants and Appellants.
Jacks & Maybaum, Jerid R.
Maybaum and Russell W. Clampitt for Plaintiff and Respondent.
I. INTRODUCTION
Defendants and appellants, Brian Charles Ostler, Sr. (Ostler) and Law
Offices of Brian C. Ostler, Sr. (the law offices), appeal from the trial
court’s denial of their special motion to strike (anti-SLAPP
(Code Civ. Proc., § 425.16.)
plaintiff and respondent, W.E. Jon Albrecht, for malicious prosecution arose
from defendants’ protected petitioning activity; (2) plaintiff’s complaint
failed to state a cause of action for malicious
prosecution against defendants; and (3) plaintiff failed to substantiate
his cause of action with sufficient admissible evidence. We conclude the trial court erred in denying
the motion because plaintiff has failed to show a probability of success on the
merits as to the element of malice.
Plaintiff contends, however, the trial court properly denied the
anti-SLAPP motion and further contends the trial court abused its discretion in
permitting the motion to be filed late and conducting the hearing on the motion
more than 30 days after it was filed. We
disagree, and we reverse the trial court’s order denying the motion.
II. FACTS AND
PROCEDURAL BACKGROUND
A. The Slaiehs’ Prior Marital Case
previously represented Deborah Slaieh in marital actions against Nabeel Slaieh.
County Superior Court case No. SWD007156, plaintiff joined three corporations,
EC Rebate Services, Inc., QC Rebate Services, Inc., and TC Rebate Services,
Inc. (the three corporations) because they were community property of the
Slaiehs. In early 2007, Deborah
discharged plaintiff as her attorney, and she and Nabeel dismissed their
divorce action.
Underlying Action
In July 2007, defendants filed a verified complaint in the underlying
action against plaintiff on behalf of both Slaiehs and the three corporations,
alleging professional malpractice, fraud, and breach of fiduciary duty as to
Deborah only; conversion, trespass to chattels, slander of title, cancellation
of written instrument, and quiet title on behalf of both Slaiehs; malicious
prosecution on behalf of the three corporations; and abuse of process on behalf
of Nabeel and the three corporations.
In October 2007, plaintiff filed an anti-SLAPP motion as to the
underlying action. The motion was
granted, and the causes of action for malicious prosecution and abuse of
process were stricken from the complaint.
Plaintiff was awarded $28,221.85 in attorney fees against Nabeel and the
three corporations.
In March 2008, again on behalf of the Slaiehs and the three
corporations, defendants filed a verified first
amended complaint against plaintiff.
The first amended complaint alleged professional malpractice, fraud, and
breach of fiduciary duty as to Deborah; conversion and trespass to chattel as
to Deborah, Nabeel, and the three corporations; and slander of title,
cancellation of written instrument, and quiet title as to Deborah and Nabeel.
In August 2008, defendants substituted out of the underlying case as
attorneys for Deborah, Nabeel, and the three corporations, and another attorney
undertook their representation. In
February 2009, Deborah filed a new marital action against Nabeel, and the new
attorneys came into the case to represent Deborah and Nabeel separately. The three corporations were unrepresented.
into the case on behalf of Nabeel.
Between July and November 2009, Nabeel and the three corporations failed
to respond to discovery propounded against them, including requests for
admission, and failed to oppose discovery motions filed against them. The requests for admission were deemed
admitted.
In November 2009, plaintiff moved for summary judgment against Nabeel
and the three corporations based on the deemed-admitted requests for
admission. Nabeel and the three
corporations did not file any opposition to the motion and did not appear at
the hearing on the motion. The trial
court granted the motion, and judgment was entered in favor of plaintiff and
against Nabeel and the three corporations.
Deborah entered into a stipulated judgment in favor of plaintiff on his
cross-complaint for fees, and thereafter dismissed herself as a plaintiff in
the underlying action.
C. The Complaint in the Current Action
Plaintiff filed a complaint on
January 25, 2011, against defendants, Nabeel, the three corporations,
Daniel W. Rinaldelli, and Law Offices of Daniel W. Rinaldelli, alleging a
single cause of action for malicious prosecution. Plaintiff alleged he had represented Deborah
in two marital actions against Nabeel, and the three corporations were joined
in the second marital action because they were community property of the
Slaiehs. In 2007, the Slaiehs dismissed
the marital action then pending, and plaintiff was discharged as Deborah’s
attorney. Plaintiff filed a first
amended complaint on July 7, 2011.
D. The Anti-SLAPP Motion
In May 2011, defendants filed their
anti-SLAPP motion. Following additional
briefing by both parties, the trial court conducted a hearing on the motion and
then denied the motion. This appeal
ensued.
III. DISCUSSION
of Anti-SLAPP Motions
The anti-SLAPP statute authorizes
a defendant to file a special motion to strike any cause of action arising from
an act in furtherance of the defendant’s constitutional
of free speech or petition for redress of grievances. (§ 425.16; Flatley v. Mauro
(2006) 39 Cal.4th 299, 311-312 (Flatley).) The purpose of the statute is to prevent the
chilling of the valid exercise of these rights through “abuse of the judicial
process†and, to this end, is to “be construed broadly.†(§ 425.16, subd. (a); Flatley, supra, at pp. 312-313.)
The anti-
the trial court evaluates the merits of a plaintiff’s cause of action at an
early stage of the litigation. (Flatley, supra, 39 Cal.4th at p. 312.) First, the defendant must show that the cause
of action arose from protected activity, i.e., activity in furtherance of the
defendant’s constitutional rights of petition or free speech. (§ 425.16, subd. (b)(1); Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) In this case, it was undisputed that the
action arose from protected activity.
determines the defendant has met its initial burden, the burden shifts to the
plaintiff to demonstrate a reasonable probability of prevailing on the merits
of his or her cause of action.
(§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause,
Inc., supra, at p.
67.) We independently review orders
granting or denying a motion to strike under section 425.16. (Flatley, supra, at p. 325.)
Probability of Prevailing on Merits
To demonstrate a reasonable probability of prevailing on the merits at
trial (§ 425.16, subd. (b)(1)), “the plaintiff must show both that the
claim is legally sufficient and there is admissible evidence that, if credited,
would be sufficient to sustain a favorable judgment.
(2007) 154 Cal.App.4th 97, 108-109.)
1. Sufficiency of Pleading
Defendants first argue that plaintiff’s complaint for malicious
prosecution was legally insufficient because it did not properly allege
plaintiff prevailed on the merits of the underlying action; as to probable
cause, the complaint included improper evidentiary allegations rather than
allegations of ultimate fact; and the complaint did not allege sufficient facts
as to malice. A complaint is legally
sufficient if it sets forth “[a] statement of the facts constituting the cause
of action, in ordinary and concise language.â€
(§ 425.10, subd. (a)(1); Doe
v. City of Los Angeles (2007) 42 Cal.4th 531, 550; see also
v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099 [“[i]t has been
consistently held that ‘“a plaintiff is required only to set forth the
essential facts of his case with reasonable precision and with particularity
sufficient to acquaint a defendant with the nature, source and extent of his
cause of actionâ€â€™â€].)
Plaintiff alleged a single cause of action for malicious prosecution
in his complaint against defendants, their former clients, and other
parties. The elements of a cause of
action for malicious prosecution are that (1) the defendant commenced or
directed the commencement of a prior action that was legally terminated in the
plaintiff’s favor; (2) the prior action was brought without probable
cause; (3) the prior action was initiated with malice; and (4) the plaintiff
suffered damage or injury as a result.
(See Sheldon Appel Co. v. Albert
& Oliker (1989) 47 Cal.3d 863, 871.)
Plaintiff alleged that he filed a motion for summary judgment in the
underlying action against Nabeel and the three corporations “based on the
‘deemed admitted’ requests for admission where the parties admitted they had no
facts to support the individual allegations or causes of action in their first
amended complaint†against him.
Plaintiff alleged the trial court granted the motion for summary
judgment, and judgment was thereafter entered in his favor, which
“constitute[d] a favorable termination of the action on the merits.†We conclude plaintiff has adequately alleged
that the prior action was terminated in his favor.
Plaintiff alleged that defendants “lacked probable cause to initiate
or prosecute†the underlying action. We
conclude plaintiff sufficiently alleged ultimate facts to state a claim; the
fact that he also included superfluous evidentiary facts in his pleading is
irrelevant. (E.g., Estate of Butzkow (1937) 21 Cal.App.2d 96, 99 [stating that in
deciding the sufficiency of a pleading, allegations of evidentiary fact are disregarded].)
As to defendants, plaintiff alleged that malice was “demonstrated by
Deborah’s statement under penalty of perjury that Attorney Ostler and Nabeel
instructed her to execute the complaint and Nabeel stated ‘they were going to
get Jon Albrecht.’†Plaintiff alleged
that malice was “further implied by the lack of probable cause.†We conclude plaintiff has adequately pleaded
malice.
Having determined that plaintiff adequately alleged each of the
elements of a claim for malicious prosecution, we reject defendants’ contention
that plaintiff’s complaint failed to state a claim.
2. Reasonable Probability of Prevailing on the
Merits
We next examine whether plaintiff has demonstrated “admissible
evidence that, if credited, would be sufficient to sustain a favorable
judgment.†(McGarry v. University of San Diego, supra, 154 Cal.App.4th at pp. 108-109.) In making this assessment, “‘[w]e consider
“the pleadings, and supporting and opposing affidavits . . . upon
which the liability or defense is based.â€
(§ 425.16, subd. (b)(2).) However, we neither “weigh credibility [nor]
compare the weight of the evidence.
Rather, [we] accept as true the evidence favorable to the plaintiff
[citation] and evaluate the defendant’s evidence only to determine if it has
defeated that submitted by the plaintiff as a matter of law.â€â€™ [Citation.]
If the plaintiff ‘can show a probability of
action is not meritless’ and will not be stricken; ‘once a plaintiff shows a
of its claim, the plaintiff has established that its cause of action has
some merit and the entire cause of action stands.’†(Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
3. Malice
We focus on the element of malice because we determine that issue is
dispositive.
“The malice element of malicious prosecution goes to the defendants’
subjective intent for instituting the prior case. [Citation.]
Malice does not require that the defendants harbor actual ill will toward
the plaintiff in the malicious prosecution case, and liability attaches to
attitudes that range ‘“from open hostility
to indifference.
[Citations.]â€â€™ [Citation.] Malice may be inferred from circumstantial
evidence, such as the defendants’ lack of probable cause, supplemented with
proof that the prior case was instituted largely for an improper purpose. [Citation.]
This additional proof may consist of evidence that the prior case was
knowingly brought without probable cause or was brought to force a settlement
unrelated to its merits.
[Citation.] A defendant
attorney’s investigation and research also may be relevant to whether the
attorney acted with malice.†(
APC (2012) 206 Cal.App.4th 1095, 1113-1114.)
“To infer malice from the evidence supporting lack of probable cause,
the parties’ prefiling behavior must have been clearly unreasonable.†(Grindle
v. Lorbeer (1987) 196 Cal.App.3d 1461, 1466.) In that case, the court held that merely
negligent prefiling research did not amount to actual malice on the part of the
attorneys. (Id. at pp. 1467-1468.)
However, evidence that a party knowingly
brought an action without probable cause may supply the required additional
proof of malice. (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 226.) Likewise, “malice can be inferred when a
party continues to prosecute an
action after becoming aware that the action lacks probable cause.†(Ibid.) In Daniels,
the court held the following evidence was insufficient as a matter of law to
establish malice as to attorney defendants:
“[A]n apparent lack of evidentiary support for the factual allegations
in the underlying action; a lack of factual investigation as evidenced by an
inability to provide formal or informal discovery; a client who may have had
actual ill will against [the malicious prosecution plaintiff]; and a refusal by
[the plaintiff in the underlying action] to dismiss without a waiver of claims
by [the malicious prosecution plaintiff].â€
(Id. at p. 227.)
Plaintiff points to the following evidence to support his claim of
malice in initiating or continuing to litigate the underlying case: Deborah’s declaration that she told Ostler
and Nabeel that (1) plaintiff “‘hadn’t done anything wrong’â€; (2) plaintiff
“‘never did anything that Attorney Ostler and Plaintiff Nabeel Slaieh alleged
in their complaint’â€; (3) Ostler and Nabeel “‘forced [her] to execute said
complaint’â€; and (4) Nabeel “stated ‘they were going to get [plaintiff].’†Plaintiff also relies on his own “belie[f
that defendants] had personal animosity toward him, based on the unnecessary
contempt proceedings and State Bar complaint filed in the underlying
case.†Plaintiff stated in his
declaration: “Attorney Ostler
aggressively pursued me at the beginning of the [underlying action]. He attempted to have me held in contempt of
court based on his claim that I failed to promptly deliver the Deborah Slaieh
client files to him. Those files were
released to Ostler. Ostler also
initiated a State Bar complaint against me over the release of the client
files.â€
Parsing plaintiff’s declaration closely, we conclude it does not
support a finding of malice. Although
plaintiff stated the “files were released to Ostler,†he never stated that he
had turned those files over before the
initiation of the contempt proceedings or the State Bar complaint, and although
he stated the contempt proceedings and State Bar complaint were “unnecessary,â€
he never stated they were meritless.
We further conclude Deborah’s declaration fails to support a
reasonable probability of plaintiff’s prevailing on the issue of malice. Deborah attributes to Nabeel, not defendants,
the statements that “‘they were going
to get [plaintiff]’†(italics added) and “he
wanted to ‘get him’ ([plaintiff]) and this [filing the underlying complaint]
was the best way†(italics added).
However, she did not aver that such statements were made in defendants’
presence, or even that the “they†in the first statement referred to defendants. Moreover, although she stated she was
“forced†to execute the verified complaint in the underlying action, she never
stated she was forced to sign the State Bar complaint, in which she stated
plaintiff had refused to turn over her files to Ostler and had refused to
return $73,000 in cash she had given him for safekeeping.
Moreover, Ostler stated in his
declaration that he had served as attorney for the Slaiehs and the three
corporations in the underlying action from June 26, 2007, until
August 26, 2008. He stated he had
met and conversed with the Slaiehs numerous times “to discuss the allegations
which would comprise the Complaint,†and that Nabeel had informed him that
notice of plaintiff’s lien was not served at least 15 days before the lien was
recorded. He stated that Deborah had
sent him a proposed complaint to the State Bar around the time the underlying
complaint was filed, and she had filled out a second complaint to the State
Bar, dated August 27, 2007, which Ostler filed. Thereafter, he communicated with the State
Bar about statements Deborah had made in her State Bar complaint.
Albrecht further argues that
Ostler’s verification of the complaint in the underlying action indicates
malice. Ostler’s verification was made
on information and belief and on his representation that the Slaiehs were
absent from the county. Two weeks later
the Slaiehs themselves verified the complaint.
Moreover, Ostler stated in his declaration that he had conferred with
the Slaiehs numerous times to discuss their allegations. Thus, the fact that Ostler verified the
complaint fails to demonstrate malice, even if the practice of attorney
verification is generally discouraged.
(See DeCamp v. First Kensington
Corp. (1978) 83 Cal.App.3d 268, 275.)
We conclude plaintiff has failed to
establish a reasonable probability of prevailing on the merits of his cause of
action for malicious prosecution.
C. Timeliness
Plaintiff contends the trial court abused its discretion in permitting
the motion to be filed late and in conducting the hearing on the motion more
than 30 days after it was filed.
1. Additional Background
of the summons and complaint on defendants was completed by February 2,
2011. On March 15, 2011, plaintiff
filed a request for entry of default against defendants. Eleven minutes later, defendants attempted to
file a demurrer, a motion to strike, and the anti-SLAPP motion, but the court
rejected the documents.
Defendants filed a motion for relief from default. Defendants’ counsel declared he believed
plaintiff’s counsel had permitted an additional two weeks to respond to the
complaint, and he had given no warning to defendants before filing the
defaults. On May 2, the trial court
granted defendants’ motion to set aside the defaults and granted defendants
permission to file the anti-SLAPP motion.
Defendants filed the motion on May 5, 93 days after service of the
complaint. In his opposition to the
anti-SLAPP motion, plaintiff raised the issue of untimeliness. The motion was heard on June 16, 42 days
after it was filed.
In ruling on the anti-SLAPP motion, Judge Jackson observed that the
motion had been filed two weeks late, but another court had given permission
for the late filing, and the court was “not in a position to overrule that
prior ruling.â€
As a general rule, an anti-SLAPP
motion should be filed within 60 days after service of the complaint, although
the trial court has discretion to permit a later filing date. (§ 425.16, subd. (f).)
v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 684, the court stated
that a court “may very well elect†to consider an untimely motion to strike,
even if the defendant has failed to request leave of court to file an untimely
motion, “if it appears that the motion has merit.†In exercising its discretion, the trial court
considers whether late filing is consistent with the primary purpose of the
anti-SLAPP statute, which is to ensure the prompt resolution of lawsuits that
impinge on a defendant’s free speech rights.
(Platypus Wear, Inc. v. Goldberg (2008)
166 Cal.App.4th 772, 776, 782.)
In this case, the reason for the
late filing of the motion is manifest—defendants first had to obtain vacation
of the defaults. Once the trial court
granted that relief, defendants acted promptly in filing the anti-SLAPP
motion. We conclude the trial court did
not abuse its discretion in permitting the late filing of the anti-SLAPP
motion.
(b) Late hearing on motion
Plaintiff further claims the trial court abused its discretion in
conducting the hearing on the motion more than 30 days after it was filed. Plaintiff did not raise the issue in the
trial court.
The clerk of the court must schedule
the hearing on an anti-SLAPP motion within 30 days after service of the motion,
docket conditions permitting.
(§ 425.16, subd. (f).) In
Cal.App.4th 1337, 1349, the court stated that the statute “does not require the
moving party to ensure that the hearing is so scheduled and does not justify
the denial of a special motion to strike solely because the motion was not
scheduled for a hearing within 30 days after the motion was served.†As the court explained in
burden on the court clerk, rather than the moving defendant, to schedule a
hearing to occur within 30 days after service of the motion.†(Chitsazzadeh
v. Kramer & Kaslow, supra,
199 Cal.App.4th at p. 685, fn. 7.) We
conclude there was no reversible error in conducting the hearing more than 30
days after service of the motion.
IV.
DISPOSITION
The order appealed from is reversed.
Defendants are awarded their costs
on appeal.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.
name="_ftn1" title=""> [1] Judge Jackson ruled on defendants’ special
motion to strike (Code Civ. Proc., § 425.16), and Commissioner
Durand-Barkley permitted defendants to file the motion more than 60 days after
service of plaintiff’s complaint on them.
name="_ftn2" title=""> [2] SLAPP is an acronym for strategic lawsuit
against public participation.
