Daneshrad v. Aryeh
Filed 7/3/13 Daneshrad v. Aryeh CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
JOSEPH DANESHRAD,
Plaintiff and Appellant,
v.
FERIAL ARYEH,
Defendant and Respondent.
B241604
(Los Angeles
County
Super. Ct.
No. BC471679)
APPEAL from
a judgment of the Superior Court of
County.
John
L. Segal, Judge. Affirmed.
Law Offices of Joseph Daneshrad and Lyle River for Plaintiff and
Appellant.
Law Offices of Farah Faramarzi,
Farah Faramarzi; Law Offices of Michael Sabzevar and Michael Sabzevar for
Defendant and Respondent.
________________________________
The trial court granted a special
the Anti-Strategic Lawsuit Against Public Participation (Anti-SLAPP)
statute. (Code Civ. Proc.,
§ 425.16.) We affirm.
FACTS
The Underlying Family Court Proceedings
In 2009,
Ferial Aryeh (Ferial) filed a petition to dissolve her marriage to Jamshid
Aryeh (Jamshid).
title="">[1] During the proceedings, the family court
granted Ferial’s ex parte application for an order directing Jamshid to sign a
release form that would authorize Ferial to access information at Washington
Mutual Bank regarding a line of credit that was under Jamshid’s name alone. Ferial contended the line of credit was
secured by the family residence, and that Jamshid had borrowed money on the
credit line and then failed to make payments, all without Ferial’s knowledge
until a notice of default was recorded against the property.
Ferial
subsequently applied to the family court
for an order to show cause (OSC) for contempt based on an allegation that
Jamshid had not signed the release for the information at Washington Mutual
Bank. The papers filed for the OSC for
contempt identified the “citees†as Jamshid and his attorney, Joseph
Daneshrad. The papers filed for the OSC
for contempt alleged as to Jamshid that he had not signed the Washington Mutual
Bank release form as ordered by the family court. In other papers, Ferial’s counsel expressly
acknowledged that the OSC for contempt was also initiated as to attorney
Daneshrad based upon his “blatant and open encouragement and assistance of
[Jamshid]’s violation of the court order.â€
In September
2009, the family court issued an OSC for contempt. The OSC was served on Jamshid and attorney
Daneshrad. At a hearing in October 2009
on the OSC, attorney Daneshrad advised the family court that Jamshid had signed
the release form, and it was handed over to the court for delivery to Ferial’s
counsel. At a later hearing in October
2009, Ferial’s counsel withdrew the OSC as to attorney Daneshrad.
The Complaint for Malicious Prosecution and the Anti-SLAPP Motion
In October
2011, attorney Daneshrad filed a complaint for damages against Ferial, separate
from the family court proceeding noted above.
Daneshrad’s complaint alleged a single cause of action for malicious
prosecution based upon Ferial’s act of initiating the OSC as to Daneshrad in
the family court proceeding.
name="_ftnref4" title="">[4] The complaint alleged that Ferial had “no
basis and no probable cause for seeking a contempt order†against
Daneshrad. The complaint alleged that
Daneshrad “was injured by way of attorney’s fees incurred [defending against
the OSC],†and by “injury to [his] reputation and social standing.â€
Ferial
filed a special motion to strike the complaint pursuant to the Anti-SLAPP statute. (Code Civ. Proc., § 425.16.) The trial court granted Ferial’s motion and
the court entered judgment in her favor, including an award of attorney’s fees
in the amount of $16,712.50, plus costs of $475.
Daneshrad
filed a timely notice of appeal.
DISCUSSION
Daneshrad contends the trial court’s
order granting Ferial ’s Anti-SLAPP motion must be reversed because a
proceeding for an OSC for contempt wrongly initiated against an opposing
party’s lawyer supports a subsequent claim for malicious prosecution by the
lawyer. In short, Daneshrad argues he
stated a cause of action for malicious prosecution and he showed he can win it,
and, as a result, his complaint should not have been stricken early pursuant to
the Anti-SLAPP statute. We
disagree.
The Anti-SLAPP
Statute
The
Legislature enacted the Anti-SLAPP statute to
address the societal ills caused by meritless lawsuits filed to “chill†the
exercise of the “constitutional rights,†including the right to petition for the redress of grievances. (Code Civ. Proc., § 425.16, subd.
(a).) To this end, the statute authorizes
a special procedure for striking certain causes of action at the earlier stages
of litigation, when they are determined to be under the protective umbrella of
the statute,
and there is no probability that the plaintiff will prevail.
The Anti-SLAPP statute’s
steps. In the first step, the court
determines whether the moving defendant has made a threshold showing that a
cause of action arises from so-called “protected activity,†that is, “from any
act of that person in furtherance of the person’s right of
petition . . . under the United States Constitution or the
California Constitution in connection with a public
issue . . . .†(Code
Civ. Proc., § 425.15, subd. (b)(1).)
When a court determines a moving defendant has made the required
first-step showing that a challenged cause of action “arises from protected
activity,†the court then moves to the second step of the statute
special striking procedure, where the court determines whether the plaintiff
has demonstrated a “probability†that he or she will prevail on his or her
claim. (See Code Civ. Proc.,
§ 425.16, subd. (b)(1); and see. e.g. Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) A cause of action is subject to being
stricken under the Anti-SLAPP statute only
when both steps of the statute’s special striking procedure are established.
an order granting a special motion to strike under the de novo standard of
review, meaning the appellate court undertakes the same two-step procedure as
did the trial court. (
Screening & Selection Services, Inc.
(2010) 182 Cal.App.4th 1644, 1651-1652.)
Analysis
A cause of
action arising from litigation activity falls within the protective reach of
the Anti-SLAPP statute
because our state does not want its citizens to be chilled in exercising the
constitutional right to seek redress of grievances through our state’s
courts. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733-741 (
1087-1088.) When Ferial instituted the
underlying contempt proceeding in the family law case, she was engaged in
protected litigation activity within the meaning of the Anti-SLAPP statute. Daneshrad expressly states in his opening
brief on appeal that he does not contest that his cause of action for malicious
prosecution arises from Fariel’s “protected†petitioning activity.
This brings us to the second step of
the special striking procedure authorized by the statute: determining whether Daneshrad has shown a
“probability†that he will prevail on his cause of action for malicious
prosecution against Ferial. In this
inquiry, Daneshrad has the burden to demonstrate that his complaint is both
legally sufficient and supported by a sufficient prima facie showing of
evidence to sustain a judgment in his favor if his evidence is credited. (Jarrow
Formulas, supra, 31 Cal.4th at p. 741.)
To prevail on a cause of action for
malicious prosecution, a plaintiff must plead and prove that a prior action was
(1) terminated in the plaintiff’s favor; (2) brought with-out probable cause;
and (3) initiated with malice. (
(1989) 47 Cal.3d 863, 871-872.)
Here, if the record does not
disclose that Daneshrad had a viable cause of action for malicious prosecution,
and that there is at least some evidence on each of the three elements noted
above, then we must affirm the trial court’s decision to grant Fariel’s motion
to strike Daneshrad’s complaint.
Daneshrad’s arguments on appeal address the legal issue of whether there
is an “absolute bar†against a cause of action for malicious prosecution when
it is based on any order or order to show cause in a family law case. This legal issue involves the applicability of
Bidna v. Rosen (1993) 19 Cal.App.4th
27 (Bidna). Although Bidna
was not cited or argued in the moving papers or opposition papers that were
filed in the trial court, the trial court relied predominantly on
not prevail on his malicious prosecution claim against Fariel.
We find that Bidna applies here, and that under Bidna, Daneshrad cannot prevail on his malicious prosecution claim
against Fariel. In Bidna, Division Three of the Fourth District Court of Appeal addressed
whether there is an “absolute bar of malicious prosecution claims based on
OSC.†(Bidna, supra, 19 Cal.App.4th at p. 34.) The court ruled there is such a bar. There, a wife and her attorneys, financed by
the wife’s mother, brought six “totally meritless ex parte applications and
OSC’s to change [child] custody.†(
activities as “egregious.†(
prosecution. Although the opinion is not
altogether specific, it suggests that husband’s complaint named wife, her
mother, and the attorneys who represented wife.
In the context of demurrer, the trial court ruled that husband could not
state a cause of action for malicious
prosecution based on the ex parte applications and OSCs in a family law
proceeding. (Id. at pp. 34-39.)
In concluding that a plaintiff
cannot state a cause of action for malicious prosecution based on the ex parte
applications and OSCs in a family law proceeding, the Court of Appeal
“weigh[ed] the arguments both for and against a bright line rule [against
stating a malicious prosecution claim arising from] family law cases.†(Bidna,
at p. 34.) Among the arguments in
favor of such bright line rule are (1) the unique propensity for bitterness in
family law litigation; (2) the unique ability of family law courts “to swiftly
discourage litigious nonsense†by attorney fee awards and sanctions; and (3)
the special sensitivity and flexibility that family law proceedings
require. (Id. at p. 35.) Against these
factors, the court recognized the potential inadequacy of family law remedies,
and the limitations on remedies available to a wronged party. (Id.
at p. 36.) After weighing the pros and
cons, the Court of Appeal decided that a bright line rule barring malicious
prosecution claims arising from orders and OSCs in a family law proceeding was
the best result. (Id. at pp. 34-39.) The Supreme
Court denied review. (
In summary, Bidna established this bright-line, absolute rule: no
person who is involved in a family law proceeding as a party or as a
lawyer, or who otherwise has some connection to the family law proceeding,
based on orders or OSCs issued in the proceeding. The unavoidable corollary is that
involved in a family law proceeding as a party or as a lawyer, or who otherwise
has some connection to the family law proceeding, for malicious prosecution
based on orders or OSCs issued in the proceeding.
We agree with Bidna’s rule and reasoning.
As did the Court of Appeal in Bidna,
we acknowledge Daneshrad’s alleged harms, and that denying a malicious
prosecution claim will deny him the possibility of seeking damages apart from
out-of-pocket losses, for example, damage for loss of reputation, emotional
distress, and punitive damages.
Daneshrad argues further that the availability of an independent
malicious prosecution claim will deter bad acts in the family court. He argues that potentially troubling issues
may arise when, as here, a spouse initiates a contempt proceeding against an
opposing spouse and his or her attorney. Danseshrad argues that Fariel’s contempt
proceeding against him may have been
intended to “chill†Daneshrad’s representation of his client, or to create a
conflict of interest that disrupted the attorney-client relationship. In short,
Daneshrad essentially argues that an independent malicious prosecution claim
should be viewed as a net positive.
Daneshrad’s arguments do not
persuade us that he must be allowed to pursue an independent lawsuit for
malicious prosecution based on the OSC in the underlying family court proceeding,
rather than seek (or have sought) remedies in the family court. Bidna
largely considered the justifications offered by Daneshrad, but concluded a
malicious prosecution claim should not be allowed when based on orders or OSCs
in family law proceedings. We agree with
Bidna’s reasoning, and agree that
remedies in the family court, such as attorney fees and sanctions, would be
sufficient to negate the need for independent lawsuits for malicious
prosecution.
This brings us full circle to the
issue before us on Daneshrad’s appeal from the order granting Ferial’s
Anti-SLAPP motion –– namely, can Daneshrad prevail? Under Bidna,
Daneshrad cannot prevail. The motion was
properly granted.
Attorney Fees
In an
undifferentiated argument in his opening
brief on appeal, Daneshrad contests the amount of attorney fees awarded to
Ferial. He argues the trial court did
not rely on the grounds argued in Fariel’s motion to strike Daneshrad’s
complaint, implying that no fees should have been awarded. Further, Daneshrad argues Ferial’s request
for attorney fees was based on “totally padded, inefficient and duplicativeâ€
legal work. He questions Ferial’s
request for approximately $32,000 in attorney fees and costs, and asserts that
the approximately $17,000 eventually awarded amounted to a “windfall.â€
The Anti-SLAPP statute provides
that a prevailing defendant on a special motion to strike “shall be entitled to recover his or
her attorney’s fees and costs.†(Code
Civ. Proc., § 425.16, subd. (c)(1).)
The statute is interpreted to authorize an award of reasonable attorney
fees and costs. (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 362.) The determination of reasonable attorney’s
fees lies within the discretion of the trial court. (Mann
v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340.) Daneshrad’s superficial argument on appeal
does not persuade us that an award of $17,000 for the Anti-SLAPP motion here is
unreasonable and, thus, an abuse of discretion.
DISPOSITION
The
judgment is affirmed. Respondent Ferial
Aryeh is awarded her costs on appeal, including reasonable attorney fees. (Church
of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659.)
BIGELOW,
P. J.
We concur:
FLIER, J. GRIMES,
J.
name="_ftn1" title="">
for ease of reference and mean no disrespect.
making any observation about the merits of the claims against attorney
Daneshrad, we note in the abstract that an attorney who advises his client to
violate a lawful court order may be held in contempt. (See Hawk
v. Superior Court (1974) 42 Cal.App.3d 108, 117 [direct contempt in court;
attorney told court that he had advised his client not to give a lawful,
court-ordered handwriting exemplar].)
