Duringer Law Group v.MacMillan
Filed 3/4/13 The Duringer Law Group v.MacMillan CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE DURINGER LAW GROUP, et al.,
Plaintiffs and
Appellants,
v.
ALAN MACMILLAN, et al.,
Defendants and
Respondents.
G046637
(Super. Ct.
No. 30-2011-00512549)
O P I N I O
N
Appeal from orders of
the Superior Court
of
County, Ronald L. Bauer, Judge. Affirmed.
The Duringer Law Group,
Stephen C. Duringer, Eric J. Bautista, Edward L. Laird II; Law Office of Edward
E. Dollar, Edward E. Dollar for Plaintiffs and Appellants.
Hunt & Adams, and
John C. Adams III, for Defendant and Respondent Alan MacMillan.
Law Offices of Rex T.
Reeves, and Rex T. Reeves, for Defendants and Respondents Chambers, Noronha
& Kubota, Gary L. Chambers, Peter A. Noronha, Yoshiaki C. Kubota, and
Jonathan Dwork.
The
Duringer Law Group, Stephen C. Duringer, and R. Scott Andrews (hereafter
referred to collectively and in the singular as DLG, unless the context
indicates otherwise), appeal from the order dismissing its malicious
prosecution complaint against the respondents after the trial court granted the
respondents’ special motion to strike
the complaint as a strategic lawsuit against public participation (anti-SLAPP
motion). (Code Civ. Proc., § 425.16.)
MacMillan (MacMillan) and his attorneys, the law firm of Chambers, Noronha
& Kubota (CNK), and attorneys Gary L. Chambers, Peter A. Noronha, Yoshiaki
C. Kubota, and Jonathan Dwork (sometimes collectively referred to as the
attorney defendants, unless the context indicates otherwise), who sued DLG for
malpractice related to DLG’s handling of an unlawful detainer action on
MacMillan’s behalf. DLG contends the
trial court erred by granting the anti-SLAPP motion because it presented
sufficient evidence of a probability of prevailing. DLG also challenges the order awarding the
respondents their attorney fees as an abuse of discretion. We conclude DLG’s contentions are meritless,
and we affirm both orders.
FACTS & PROCEDURE
This malicious
prosecution action arises out of DLG’s representation of MacMillan in an
his commercial real property tenants, and like the Hydra of mythology, has
grown many heads. We begin with
background on each piece of litigation the unlawful detainer action has spawned
summarized from two prior opinions from this court—MacMillan v. Andrews et al. (July 1,
2011, G044208) [nonpub. opn.] (MacMillan) and
v. MacMillan (2011) 195 Cal.App.4th 648 (Munoz)—supplemented where necessary from the record before us in
this appeal.
1.
The Unlawful Detainer Action
MacMillan owns multi-unit
commercial real property in Garden Grove,
managed by Kenski Properties, Inc. (Kenski Properties). DLG is the law firm Kenski Properties
routinely used to handle evictions on properties it managed. (MacMillan,
supra, G044208, typed opinion, p. 2.)
In 2000, a unit in MacMillan’s building was leased to Mill Inn,
Inc. (Mill Inn), for use as an Internet café under a lease providing for a term
of five years, with an option for two five‑year renewal terms. The lease required six-months’ advance
written notice to exercise the renewal options.
The lease also provided that even if the lessor consented to an
assignment of the lease, such an assignment would not transfer the renewal
options unless the lessor specifically consented to also transfer the renewal
options. (MacMillan, supra, G044208, typed
opinion, p. 3.) In 2003, Mill Inn
assigned “‘all of its rights, title and interest in and to the lease’†to
Concepcion Munoz, who operated a bar on the premises. The written assignment was prepared and
signed by Linda Kenski, owner of Kenski Properties, as agent for
MacMillan. (Ibid.)
The original lease term
expired on May 30, 2006 (the lease had been amended once to extend the original
term), and Kenski Properties did not want to keep Munoz as a tenant. On June
1, 2006, it served a 30-day notice of termination of tenancy on
Munoz. “On June 7, 2006, Munoz’s attorney sent a letter to Kenski
Properties attaching a copy of a letter dated October 23, 2005, from Munoz addressed to Kenski
Properties stating she wanted to exercise her option to renew. The attorney stated Munoz’s letter had been
mailed to Kenski Properties on October
23, 2005.†(
On July 6, 2006, DLG
filed the unlawful detainer action for MacMillan (MacMillan v. Munoz (Super. Ct. Orange County, 2006, No. 06WL03662))
(the Unlawful Detainer Action) based on the 30-day notice. On October 20, 2006, the trial court entered
judgment for MacMillan and a writ of possession was issued. Munoz appealed but did not seek a stay of the
writ of possession. In January 2007,
MacMillan recovered possession of the premises and found new tenants. (MacMillan,
supra, G044208, typed opinion,
pp. 3-4.)
In January 2008, the
Appellate Division of the Superior Court of Orange County, in an unpublished
decision, reversed the unlawful detainer judgment and remanded with directions
to enter a judgment in Munoz’s favor. (
County (2008) App. Div. No. AP14837.)
The issues tried in the unlawful detainer trial included whether the
renewal option was ever assigned to Munoz and whether she timely exercised the
option. As to the former issue, the
appellate division concluded the written assignment encompassed the options
because it stated Mill Inn was assigning to Munoz all of its rights under
the lease. As to the latter issue, the
appellate division concluded Munoz had timely exercised her option to renew the
lease via the October 25, 2005, letter to Kenski Properties, and MacMillan had
not produced sufficient evidence to rebut the Evidence Code section 641
presumption that a letter properly addressed and mailed is received.
On remand, Kenski
Properties did not place Munoz back in possession. The trial court awarded her approximately
$25,000 in costs and attorney fees against MacMillan. (MacMillan,
supra, G044208, typed opinion, p.
4.)
Munoz’s Breach of Contract Action
In May 2009, Munoz filed
a breach of contract action against MacMillan (the Munoz Breach of Contract
Action), alleging MacMillan breached the lease by wrongfully evicting her from
the premises. (Munoz, supra, 195 Cal.App.4th at
pp.
651-652.) By this time, MacMillan was no
longer being represented by DLG and had retained CNK as his counsel. Although CNK had already filed MacMillan’s
separate legal malpractice action against DLG (described below), on August 3,
2009, it filed a cross-complaint for MacMillan against DLG in the Munoz Breach
of Contract Action alleging the same causes of action alleged in the legal
malpractice action. On October 30, 2009,
DLG’s demurrer to the cross-complaint was sustained without leave to amend on
the ground there was another action pending encompassing the same causes of
action.
MacMillan obtained a
summary judgment in the Munoz Breach of Contract Action on the theory that
Munoz’s eviction was not “wrongful†because it was pursuant to a valid and
enforceable court order that was acted upon by law enforcement. (Munoz,
supra, 195 Cal.App.4th at pp. 652-653.) This court reversed the summary judgment
concluding Munoz “was entitled to seek compensation for losses she allegedly
incurred following enforcement of the erroneous initial judgment in the
unlawful detainer action. Munoz could
have suffered economic loss as a result of her eviction even if the eviction
was not ‘wrongful’ as a matter of tort law.
Munoz’s most straightforward remedy was to seek restitution in the
underlying unlawful detainer action, not to bring a subsequent action for
breach of contract. But the law does not
bar Munoz from seeking contract damages in a separate action.†(Id.
at p. 650.)
MacMillan’s Legal Malpractice Action
On December 30, 2008,
MacMillan, through the defendant attorneys, filed the underlying legal
malpractice action against DLG alleging professional negligence arising out of
its representation of MacMillan in the unlawful detainer action (the
Malpractice Action). In short,
“[MacMillan] alleged [DLG] failed to properly raise, investigate, and litigate
issues concerning assignment and exercise of the renewal options and whether
the lease also could have been terminated due to Munoz’s violation of the
lease’s use provisions. MacMillan’s
complaint contained causes of action for legal malpractice and breach of fiduciary
duty.†(MacMillan, supra, G044208, typed
opinion, p. 5.) The complaint also
alleged causes of action for intentional and negligent infliction of emotional
distress.
On March 5, 2010, DLG
filed a motion for summary judgment/summary adjudication, which was set for
hearing May 20, 2010. In its moving
papers, DLG presented evidence concerning how it received unlawful detainer
cases (five to 10 cases a month) from Kenski Properties, stating the actions
were virtually always based upon the notice Kenski Properties had already
served on the tenant (e.g., three-day notice to pay rent or quit; 30-day notice
to terminate tenancy). Around June 23,
2006, Kenski Properties asked DLG to begin eviction proceedings to evict
Munoz from the premises and the case was assigned to DLG associate attorney Andrews. Duringer generally supervised Andrews, but he
had no direct involvement in this case.
Kenski Properties sent DLG the relevant documents and the 30-day
notice it had already prepared and served on Munoz on June 1, 2006, and based
on those documents, DLG filed the unlawful detainer action.
DLG asserted that at the
time of the Unlawful Detainer Action trial, Kenski Properties had no
receive Munoz’s October 23, 2005, letter exercising her option to renew the
lease and had no evidence regarding the processing of mail in its office. Kenski Properties and MacMillan acknowledged
Munoz had the option to renew because Linda Kenski sent an e-mail to MacMillan
after the unlawful detainer action was filed advising him Munoz had not timely
exercised her option to renew. Moreover,
in responding to interrogatories propounded by Munoz, Kenski Properties
employee Carleen Kezeor answered “No,†to the question asking “whether MacMillan
contends that Munoz was never granted an option to . . . extend the
lease . . . .†(
With regards to
allegations DLG failed to adequately investigate potential violations of the
lease use restrictions, or to pursue eviction of Munoz on the theory she was
not in compliance with lease conditions, or was committing waste or nuisance on
the premises, DLG asserted Kenski Properties never served Munoz with notice she
must comply with conditions in the lease. It also asserted Kenski Properties did not
have sufficient evidence to give notice terminating the tenancy due to failure
to comply with lease terms or waste. (
causation or damages.
MacMillan’s opposition
to the summary judgment motion in the Malpractice Action suffered from several
procedural problems with regard to his separate statement of undisputed
facts. At his April 28, 2010, deposition
MacMillan waived his emotional distress claims (more on that anon), and
although he did not amend his pleading, in his opposition he conceded summary
adjudication of those causes of action was proper. (MacMillan,
supra, G044208, typed opinion,
p. 5, fn. 2.)
MacMillan contended
there were material issues of fact as to his causes of action for professional
negligence and breach of fiduciary duty.
He included a declaration from Kezeor, Kenski Properties’ vice president
of administration, regarding complaints she had received about Munoz’s
customers’ behavior around the premises (littering, defecating, and urinating
around the buildings and cars, gang activity, threats to other tenants), and
she wrote to Munoz about the problems warning her they could constitute a breach
of the lease. Kezeor declared she did
not receive a copy of the letter dated October 23, 2005, saying Munoz was
exercising her option to renew, until after
she served Munoz with the 30-day notice.
Kezeor declared she spoke to Andrews before sending DLG any of the
documents pertaining to the Munoz eviction telling him about the potential
nuisance issues. She also told Andrews
that Kenski Properties had not previously received the October 2005 letter. (MacMillan,
supra, G044208, typed opinion,
pp. 8-9.)
Kezeor declared no one
from DLG had discussed the unlawful detainer complaint with anyone from Kenski
Properties before it was filed. Andrews
did not review Kezeor’s responses to special interrogatories propounded by
Munoz, including the question, “‘Do [you] contend that when [you] consented to
the assignment of [Mill Inn’s] interest in the [lease], [you] did not consent
to [Munoz] being assigned an option to extend . . . [,]’†to which Kezeor
replied, “No.†Kezeor declared she was
the only witness Andrews called at trial and he presented no evidence about
nuisance conditions at the premises even though Andrews was given a declaration
from another tenant about the conditions.
(MacMillan, supra, G044208,
MacMillan also submitted
a declaration from a litigation attorney with expertise in commercial unlawful
detainer actions, who opined Andrews lacked the requisite experience to handle
the case, and breached the standard of care by failing to adequately
investigate or present evidence concerning Munoz’s exercise of the option to
renew the lease. (MacMillan, supra, G044208, typed
opinion, p. 10.)
The trial court granted
DLG’s motion for summary judgment because of the procedural defects in
MacMillan’s separate statement. (
we concluded the trial court abused its discretion by granting the summary
judgment motion solely due to procedural defects. However, upon the requisite de novo review,
we concluded MacMillan had not carried his burden to demonstrate there were
triable issues of fact as to his causes of action—in particular because he had
not demonstrated causation, i.e., that but for the alleged negligence, he would
have prevailed on the appeal of the unlawful detainer judgment he obtained
against Munoz.
There were three issues
MacMillan claimed Andrews had botched in the Unlawful Detainer Action: “(1) whether Mills Inn’s assignment of the
lease to Munoz included assignment of the option terms; (2) whether Munoz
timely exercised the options; and (3) whether Munoz was committing waste
or maintaining a nuisance in violation of the use provisions of the
lease.†(MacMillan, supra, G044208, typed opinion,
p. 18.) As to the first issue, the
appellate division of the superior court concluded the plain meaning of the
assignment language was that the option terms had been assigned to Munoz, and
MacMillan’s separate statement contained no objective evidence that an
assignment of the options was not intended.
(MacMillan, supra, G044208,
Andrews was negligent in failing to present evidence to overcome the
presumption of mailing, but he made no showing as to what evidence existed that
would have overcome the presumption. (
showing as to how the claimed
obnoxious behavior by Munoz’s customers violated the lease terms or would have
supported her eviction. (
DLG’s Malicious Prosecution Action
On October 3, 2011, DLG
filed the instant malicious prosecution action (the Malicious Prosecution
Action) against the respondents (i.e., MacMillan and the attorney
defendants). The original complaint
contained two malicious prosecution causes of action: one premised on the filing and maintenance of
the Malpractice Action and one premised on the filing and maintenance of the
cross-complaint in the Munoz Breach of Contract Action. On December 2, 2011, DLG filed a first
amended complaint containing the same allegations, and attaching the same
exhibits, but deleting headings for two causes of action and combing all the
allegations concerning the Malpractice Action and the cross-complaint in the
Munoz Breach of Contract Action into a single malicious prosecution cause of
action.
Anti-SLAPP Motion
The respondents jointly
filed an anti-SLAPP motion contending the Malicious Prosecution Action arose
out of protected activity and DLG would not be able to demonstrate a
probability of prevailing on the merits, in particular with regards to the
probable cause and malice elements of the cause of action. They additionally asserted the “de factoâ€
second cause of action for malicious prosecution premised on prosecution of the
cross-complaint in the Munoz Breach of Contract Action was time-barred. MacMillan separately asserted he acted on
advice of counsel in filing the Malpractice Action, and DLG would not be
able to overcome this defense. The
anti-SLAPP motion was accompanied by
declarations from the attorney defendants, MacMillan, and employees of Kenski
Properties, describing the circumstances surrounding the Unlawful Detainer
Action and the Malpractice Action.
Attorneys’ Declarations
Chambers was the
attorney who primarily handled the Malpractice Action for MacMillan, and the
only attorney in the CNK office involved in filing the Malpractice Action
complaint or the cross-complaint in the Munoz Breach of Contract Action. One of his associate attorneys, Dwork, did
some work on the matter, but always under Chambers’ direction and
supervision. The other two attorneys in
the office, Noronha and Kubota, had only “de minimis†involvement in the
Malpractice Action—one covered for Chambers by appearing at a status hearing
and on the motion to tax costs; the other handled processing payment of costs
and discovery sanctions awarded to DLG in the Malpractice Action.
Chambers declared the Malpractice
Action was referred to his firm by Tom Cummings, the attorney who picked up
where DLG left off in handling the Unlawful Detainer matter. Cummings explained to Chambers that although
DLG had initially succeeded in the Unlawful Detainer Action, Andrews did such a
poor job, failing to rebut defenses or present available evidence, that the
judgment could not withstand appeal, and the resulting reversal had left
MacMillan responsible for Munoz’s costs in the Unlawful Detainer Action and
exposed to significant liability in the Munoz Breach of Contract Action. MacMillan, a retired veterinarian, lived
primarily in Hawaii and was not intimately involved in management of the
property—Kezeor and Linda Kenski were the persons most knowledgeable about the
facts. Chambers learned from Kezeor and
Linda Kenski that MacMillan was “shocked†about what had happened in the
Unlawful Detainer Action—he was “scared, very concerned, worried and fearfulâ€
over being left responsible for costs and exposed to significant liability in
the Munoz Breach of Contract Action.
After discussing the facts about the Unlawful Detainer Action with
Kezeor, Linda Kenski, and MacMillan, Chambers was convinced MacMillan had
viable claims against DLG. Chambers
filed the cross-complaint in the Munoz Breach of Contract Action out of an
abundance of caution because the claims were related and he did not want to
take a chance of the malpractice claim being deemed a compulsory
cross-complaint. The cross-complaint was extremely
short-lived—it was dismissed on DLG’s demurrer within two months of being
filed. Chambers denied he filed or
prosecuted the Malpractice Action with malice—he had no feeling of malice or
ill will toward any of the defendants in the Malpractice Action.
Attorneys Dwork, Noronha,
and Kubota each filed a declaration confirming their limited involvement in the
Malpractice Action and denying they had any ill will or feeling of malice
towards DLG.
MacMillan’s Declaration
MacMillan declared he
had hired Kenski Properties as his agent to manage the property in 1998. To MacMillan’s knowledge, when the Mill Inn
lease was assigned to Munoz in 2003, Kenski Properties did not specifically
consent to assignment of the options to renew, and at no time did he consent to
the renewal options being assigned to Munoz.
MacMillan believed the end date for Munoz’s lease term was May 30, 2006,
with no option to renew. Before
expiration of Munoz’s lease, Linda Kenski and Kezeor both told him about
nuisance-type conditions at the premises, and MacMillan concurred with their
recommendation that when the lease term expired, Munoz should not be continued
as a tenant.
MacMillan was extremely
distressed about what happened after the initial favorable judgment in the
Unlawful Detainer Action. First,
although Munoz had been evicted and MacMillan thought he was “‘in the clear,’â€
he learned Munoz was pursuing her appeal of the Unlawful Detainer Action and
was not told by DLG the appeal was still active until a few days before his
brief was due. When he learned Munoz had
obtained a reversal of the unlawful detainer judgment, MacMillan was told he
had to “‘appeal the appeal,’†and Andrews was optimistic the Court of Appeal
would reverse. In March 2008, MacMillan
was informed that according to Andrews, “the higher court had refused to hear
the ‘appeal of the [Unlawful Detainer Action] appeal’ and that we were
basically out of options.†MacMillan
later learned (in the course of the current litigation), that this court
refused to review the appellate division’s ruling for jurisdictional
reasons—the appeal (i.e., the transfer
request) was not timely filed by DLG—and DLG had billed MacMillan for the
untimely appeal and its efforts at obtaining a writ from this court directing
the superior court to accept the untimely transfer request. MacMillan knew Munoz was planning on filing a
lawsuit against him seeking $5 million in damages and $1 million in attorney
fees. MacMillan was “seriously
frightened and extremely concerned about losing [his] life savings and
retirement.â€
MacMillan was certain
DLG had mishandled the Unlawful Detainer Action from the beginning and
authorized Kenski Properties to find new counsel to file suit against DLG. In authorizing the Malpractice Action to be
filed, MacMillan was acting on facts and information known to himself and his
agents that were provided fully to Chambers, and upon Chambers’ advice that he
had viable claims. MacMillan declared
that while he was extremely upset about DLG’s mishandling of the Unlawful
Detainer Action and the disastrous outcome, he did not hold any malicious or
other bad feelings against DLG, Duringer, or Andrews.
Lewis Kezeor’s Declaration
Lewis Kezeor (Lewis) was
employed by Kenski Properties since 2002 and was the person responsible for all
mail collection, handling, and distribution; he was also the bookkeeper. Had Lewis been called as a witness at the
Unlawful Detainer Action trial, he would have testified he was the only person
who picked up mail from Kenski Properties’ post office box or
building. Lewis explained in detail the
office procedures for handling incoming mail and was very familiar with how
Kenski Properties maintained tenant files.
A letter exercising an option to renew was considered a very important
document and would be placed in the tenant file. Had such a letter been received it would have
been opened first by Lewis, then distributed by him to Linda Kenski for review,
and placed in the tenant file. Lewis
declared he had no recollection of himself, Linda Kenski, or Kezeor being out
of the office on vacation or sick in late October or early November 2005. Lewis declared he had no recollection of
receiving an option renewal letter from Munoz in the fall of 2005, and it was
inconceivable that had such a letter ever been received by the office, it would
have been lost.
Carleen Kezeor’s Declaration
Kezeor filed a 26-page
declaration accompanied by 29 exhibits (almost 120 pages) relating to the
Unlawful Detainer Action and her communications with DLG attorneys—in
particular with Andrews. She explained
the Mill Inn lease was executed by Linda Kenski on behalf of MacMillan. Linda Kenski signed the consent to assignment
of the lease to Munoz, but there was no writing whereby MacMillan specifically
consented to assignment of the renewal terms to Munoz. Once the lease was assigned to Munoz, Kenski
Properties operated under the belief the lease would expire on May 30,
2006. After Munoz took possession,
Kenski Properties began receiving complaints about her bar and the conduct
of her customers and “extreme nuisance conditions.†There was also a brewing dispute between
Munoz and another tenant. On May 22,
2006, Kenski Properties wrote Munoz warning her the problems at the bar
constituted a violation of her lease. By
the end of May, Kenski Properties and MacMillan decided they wanted Munoz out
of the building but knew she would be a problem to evict.
In late May,
Munoz, Kezeor and Linda Kenski called DLG about the situation and spoke
directly with Andrews about how they should proceed with the Munoz
eviction. Although Andrews was handling
this specific case, Kezeor and Linda Kenski understood and believed Duringer
was actively supervising him. They
specifically told Andrews about the nuisance conditions, that other tenants
were threatening to move out because of the conditions, that the lease expired
on May 30, 2006, and that they expected Munoz would put up a fight. Andrews advised them to evict by serving a
30-day notice of termination of tenancy upon expiration of the lease, which
they did.
On June 2, 2012, after
serving Munoz with the 30-day notice, Kezeor received a call from Munoz’s
daughter who said she and Munoz understood the lease was for a 15-year
term. Kezeor explained the five-year
lease expired May 30, 2006, and the two five-year options were not assigned to
Munoz (just the initial lease term), and even if the options had been assigned,
they had not been timely exercised.
Munoz’s daughter asked if they could exercise the options now; Kezeor
told her it was too late. After that
telephone conversation, Munoz faxed the letter dated October 2005, stating she
was exercising the option to renew.
Kezeor declared the letter was not in the tenant file, or any other
tenant file, and she was confident no such letter had ever been received by
Kenski Properties—i.e., that Munoz had backdated it. Kezeor explained in detail about Kenski
Properties’ internal mail handling and processing procedures, and Kenski
Properties’ filing procedures, offering that if such a letter had ever been
received by Kenski Properties it would have been in the tenant file. In 16 years at Kenski Properties, there had
never been another instance when such an important letter had been lost. Had Kenski Properties received such a letter
in October 2005, Kezeor would have remembered it because exercising a five-year
renewal option was very significant.
After receiving the
faxed letter, Kezeor spoke with Andrews and told him they would have to proceed
with the unlawful detainer and it was clearly not going to be a routine
case. She told Andrews she believed the
letter had been backdated and there was no record of Kenski Properties having
received it. She also told Andrews the
renewal options had not been assigned to Munoz when the lease was assigned—no
one consented to assignment of the renewal options. Andrews assured her everything was under
control.
DLG filed the Unlawful
Detainer Action on July 6, 2006. No one
from DLG ever contacted Kenski Properties or MacMillan about the contents of
the complaint. No one from DLG ever
suggested to Kenski Properties that if Munoz was claiming she had the option to
renew and had validly exercised that option, Kenski Properties could start the
eviction process over based on the nuisance conditions.
Andrews sent Kezeor
Munoz’s written discovery requests, which included a question, “Do [you]
contend that when [you] consented to the assignment of [the lease], [you] did
not consent to [Munoz] being assigned an option to extend the [lease]
term?†No one from DLG helped Kezeor
with her responses. Kezeor mistakenly
answered “Noâ€(the question contained a double negative), when she meant to
answer “Yesâ€, i.e., that they contended Munoz did not have an option to renew. Andrews later served Munoz with supplementary
responses, changing the response to “Yes†but he allowed the original “Noâ€
response to be introduced into evidence at the Unlawful Detainer Action trial.
Kezeor declared she was
the only witness Andrews called at the Unlawful Detainer Action trial (other
than the person who served the 30-day notice), and he only spoke to her for
five to 10 minutes in the hallway to prepare her to testify. Andrews asked no questions and presented no
other evidence concerning mail receipt procedures and filing to substantiate
Kenski Properties’ claim that the October 2005 renewal letter had never been
received by Kenski Properties. Andrews
made no inquiries into Kezeor’s telephone conversation with Munoz’s daughter
(i.e., asking if Munoz could exercise the option to renew late), which
conversation was inconsistent with Munoz’s later claim she had exercised the
option in 2005. Andrews asked no
questions about whether there had been a consent to assignment of the renewal options
to Munoz.
Kezeor also detailed the
conditions at the premises (fights in the parking lot, vandalism, broken
bottles, and patrons urinating, defecating, and engaging in sex acts in the parking lot), and the numerous
complaints from other tenants who were threatening to vacate. Andrews was well aware of this information as
he had utilized a declaration from one of the unhappy tenants to prevent Munoz
from obtaining a stay to prevent her being locked out of the premises while the
appeal of the Unlawful Detainer Action judgment was pending.
After the appellate
division reversed the unlawful detainer judgment, Kenski Properties authorized
DLG to file an appeal (i.e., a request to transfer to the Court of
Appeal). Andrews represented to Kenski
Properties the appeal had been filed, but this court refused to hear it. DLG submitted several bills to MacMillan
relating to the appeal. Kezeor later
learned the appellate division refused to accept the request for transfer for
filing because the notice was not timely.
Moreover, DLG had billed MacMillan $8,000 relating to its unsuccessful
petition in this court for a writ of mandate seeking to compel the appellate
division to accept the notice of transfer.
Kezeor observed MacMillan and his wife were “deeply distressed†about
how badly the Unlawful Detainer Action was handled, and about “losing their
retirement†when all they were trying to do was get rid of a problem
tenant.
Linda Kenski’s 26-page
declaration was substantially identical to Kezeor’s.
B. Opposition
DLG’s opposition to the
anti-SLAPP motion focused exclusively on the attorney defendants’ conduct in
the Malpractice Action. It detailed
various discovery disputes between the attorney representing DLG, Eric Bautista,
and the CNK attorneys prosecuting the Malpractice Action. At MacMillan’s deposition, it became clear to
DLG that MacMillan had little input in the actual preparation of the complaint
in the Malpractice Action. The
opposition did not address MacMillan’s defense that he was relying on the
advice of counsel in authorizing the filing of the complaint. The opposition asserted this court’s opinion
in the Malpractice Action affirming the summary judgment established the
Malpractice Action was filed without probable cause.
DLG provided
declarations from Duringer and Bautista. Duringer’s declaration detailed discovery
disputes during the Malpractice Action that lead to imposition of sanctions
against CNK. He attached excerpts from
MacMillan’s deposition in which MacMillan indicated he had little personal
knowledge of the facts regarding the Unlawful Detainer Action litigation, he
did not personally retain DLG, and he testified he was waiving his claims for
emotional distress and had not specifically authorized including those causes
of action in the Malpractice Action.
Duringer declared it was clear MacMillan was personally unaware of most
of what CNK was doing with regard to prosecuting the Malpractice Action and he
was at most “only peripherally†involved.
Duringer’s declaration criticized the respondents’ moving papers for
being focused on “attempt[ing] to re-litigate the [Unlawful Detainer
A]ction.†He declared attorney Chambers
refused to discuss settlement in the Malpractice Action and pointed out the
complaint in the Malpractice Action sought damages “in excess of the
jurisdictional limits of the . . . court.â€
Bautista filed his
declaration again detailing the discovery disputes in the Malpractice
Action. His declaration contained no
information concerning the Unlawful Detainer Action. He declared that Chambers and Dwork “never
once articulated an interest in settlement†of the Malpractice Action.
DLG’s opposition was
also accompanied by separate evidentiary objections to the respondents’ request
for judicial notice and to each of
the declarations submitted with the anti-SLAPP motion. All told DLG’s evidentiary objections totaled
285 pages containing hundreds of individual objections.
Reply Declarations
reply, the respondents submitted additional pages from MacMillan’s deposition
in which he testified he authorized Chambers to file the complaint in the
Malpractice Action. MacMillan filed a supplemental declaration
explaining he authorized filing the complaint in the Malpractice Action based
on the facts—he declared that when he testified at his deposition that he did
not “authorize†the emotional distress causes of action; all he meant was that
he did not specifically direct what causes of action would be included in the
complaint because he would not have known what were viable causes of action and
what were not. When he testified he was
“waiving†emotional distress damages, he did not say he did not have emotional
distress—only that he did not want to get bogged down in that—he just wanted
his economic damages.
CNK employees and
attorneys Chambers, Dwork, and Kubota submitted declarations regarding
discovery disputes and motions to compel discovery, in the Malpractice Action,
and CNK’s immediate payment of the minimal sanctions imposed against it.
Ruling
At oral argument on the
anti-SLAPP motion, counsel for the respondents noted DLG’s opposition contained
no evidence demonstrating they could prevail on the Malicious Prosecution
Action in particular because nothing in the opposition addressed whether there
was probable cause to file the Malpractice Action, i.e., whether DLG had
mishandled the original Unlawful Detainer Action. The respondents submitted extensive evidence
supporting their belief DLG mishandled the Unlawful Detainer Action. Counsel also argued DLG made absolutely no
reference to MacMillan’s advice of counsel defense in its opposition.
In ruling, the trial
court began by noting it was beyond dispute the first prong was satisfied—the
Malicious Prosecution Action arose out of protected activity. The court then moved on to whether DLG had
demonstrated a probability of prevailing.
It first separated out the short-lived cross-complaint that had been
filed in the Munoz Breach of Contract Action.
It concluded DLG had not demonstrated a favorable termination of that
cross-complaint, and in any event any claim based upon that pleading was
time-barred. The court next explained
DLG had not demonstrated a probability of prevailing because it had not
demonstrated malice and lack of probable cause. As to malice, the court noted most of DLG’s
objections were completely irrelevant to the dispositive issues. It overruled DLG’s evidentiary objections to
the parts of the declarations in which the declarants’ stated they had no ill
will towards DLG as “the beginning of [the respondents’] showing that there was
no malice.†The court then explained the
only evidence DLG presented was pertaining to the attorney defendants’ conduct
of discovery in the Malpractice Action but that did not equate to malice. Although the attorney defendants lost some
discovery motions, and were ordered to pay sanctions, they immediately complied
with those sanction orders—â€they played by the rules.†There was no evidence the discovery “mishapsâ€
were undertaken with malice—â€it’s just litigation. That’s what happens.†The court moved on to probable cause. It observed the fact DLG prevailed on the
summary judgment motion did not establish lack of probable cause and the
inclusion of the emotional distress claims in the Malpractice Complaint was
within the realm of reasonable “good aggressive lawyering.â€
After the court
announced its ruling granting the anti-SLAPP motion, and directed the
respondents’ attorney to prepare a written order, DLG’s counsel asked the court
if it ruled on “every single [one]†of DLG’s evidentiary objections—almost
300 pages of them. The court
reiterated it did not believe it was necessary to rule on all of the
objections—it ruled on the relevant ones pertaining to the lack of
malice—everything else was “largely really
undisputed . . . about the history of the litigation. It’s in the records.â€
motion striking DLG’s complaint and dismissing the action, the court
subsequently awarded the respondents $105,025 in costs and attorney fees.
DISCUSSION
1.
Trial Court Properly Granted Anti‑SLAPP Motion
It is
well established that we review a trial court’s ruling on an anti‑SLAPP
motion de novo.
name="_ftnref3" title="">[3] (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326 (
Ranger Ins. Co. (2004) 115 Cal.App.4th 306, 319.) It is also well established that even when we
conduct a de novo review, we still must presume the trial court’s ruling is
correct, and the appellant has the burden of affirmatively demonstrating
error. (Jones v. Department of Corrections & Rehabilitation (2007) 152
Cal.App.4th 1367, 1376; Claudio v.
Regents of University of California (2005) 134 Cal.App.4th 224, 230.)
Section
425.16, subdivision (b)(1), provides, “A cause of action against a person arising
from any act of that person in furtherance of the person’s right of petition or
free speech under the United States Constitution or the California Constitution
in connection with a public issue shall be subject to a special motion to
strike, unless the court determines that the plaintiff has established that
there is a probability that the plaintiff will prevail on the claim.â€
In
ruling on an anti‑SLAPP motion, the trial court engages in a two‑step
analysis. First, the defendant must show
the activity underlying the cause of action arises from protected
activity. (Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If so, then the plaintiff must show a
likelihood of prevailing on the cause of action. (Ibid.) In meeting that burden,
“the 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.’ [Citations.]â€
(Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th
811, 821 (Wilson), superseded by
statute on other grounds as stated in Hutton
v. Hafif (2007) 150 Cal.App.4th 527, 547.)
A. Cause of Action Arising
from Protected Activity
DLG
concedes a malicious prosecution action is subject to an anti‑SLAPP
motion. (
Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733 (Jarrow); see also
(2006) 39 Cal.4th 260, 291; Kolar v.
Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537;
103 Cal.App.4th 210, 221.)
second prong of the analysis—whether DLG satisfied its burden of demonstrating
a probability of prevailing on its malicious prosecution action.
B. Probability of Success
To
meet its burden to establish a prima facie case of malicious prosecution, DLG
was required to demonstrate “‘“that the prior action (1) was commenced by
or at the direction of the defendant and was pursued to a legal termination in
his, plaintiff’s, favor [citations]; (2) was brought without probable
cause [citations]; and (3) was initiated with malice [citations].â€â€˜ [Citation.]â€
(Brennan v. Tremco Inc. (2001)
25 Cal.4th 310, 313;
Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871 (Sheldon Appel).)
Probable Cause
The
trial court properly granted the anti-SLAPP motion because DLG failed to
establish the Malicious Prosecution Action was brought without probable
cause. For purposes of the anti-SLAPP
statute “[o]ne has probable cause to bring a civil action if his claim is
legally tenable, as determined on an objective basis. [Citation.]
The issue of whether probable cause exists presents a question of law
for the court and requires a determination of whether any reasonable attorney
would have considered the action legally tenable in light of the facts known to
the underlying plaintiff (or, in this case, the lawyer) at the time the suit
was filed. [Citations.] [¶] If
any reasonable attorney would have considered the action legally tenable,
probable cause is established.
[Citation.] This ‘lenient
standard’ for bringing a civil action reflects ‘the important public policy of
avoiding the chilling of novel or debatable legal claims’ and allows attorneys
and litigants ‘“to present issues that are arguably correct, even if it is
extremely unlikely that they will win. . . .†[Citation.]’
[Citation.] Only those actions
that ‘“any reasonable attorney would agree [are] totally and completely without
meritâ€â€˜ may form the basis for a malicious prosecution suit. [Citation.]â€
(Padres L.P. v. Henderson (2003)
114 Cal.App.4th 495, 517 (Padres),
citing Wilson, supra, 28 Cal.4th
811, and Sheldon Appel, supra,
47 Cal.3d 863; see also Plumley v.
Mockett (2008) 164 Cal.App.4th 1031, 1047 [“Probable cause is a low
threshold designed to protect a litigant’s right to assert arguable legal
claims even if the claims are extremely unlikely to succeedâ€].)
Because
application of the probable cause standard is generally a question of law, it
is reviewed on appeal de novo. (
In applying this standard, we consider the pleadings and evidence
submitted by the parties in a light most favorable to the defendant without
weighing the evidence or assessing credibility.
(§ 425.16, subd. (b)(2); Sycamore
Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1402;
circumstances established by the evidence and the legal theory upon which
relief is sought. 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.†(Sangster
v. Paetkau (1998) 68 Cal.App.4th 151, 164-165.) “[P]robable cause to bring an action does not
depend upon it being meritorious, as such, but upon it being
completely lacking in apparent merit that no reasonable attorney would have
thought the claim tenable.†(
Preliminarily,
we may easily affirm the order granting the anti-SLAPP motion as to MacMillan
individually because DLG failed to make any attempt to defeat his advice of
counsel defense.
“‘Probable
cause may be established by the defendants in a malicious institution
proceeding when they prove that they have in good faith consulted a lawyer,
have stated all the facts to him, have been advised by the lawyer that they
have a good cause of action and have honestly acted upon the advice of the
lawyer.’ [Citations.]†(DeRosa
v. Transamerica Title Ins. Co. (1989) 213 Cal.App.3d 1390, 1397-1398;
1548, 1558.)
MacMillan
specifically raised the “advice of counsel†defense in the
anti-SLAPP motion. In his
declaration MacMillan stated that in authorizing the Malpractice
Action to be filed, he was acting on facts and information known to himself and
his agents that were provided fully to attorney Chambers, and upon Chambers’
advice that he had viable claims. DLG’s opposition to the anti-SLAPP
motion did not even mention MacMillan’s advice of counsel defense, let alone
contain any admissible evidence proving MacMillan did not honestly rely on his
counsel’s advice in filing the underlying Malpractice Action, or did not state
all the facts to counsel. Thus, DLG
failed to make a prima facie showing below that it could defeat that defense. Although the trial court did not expressly
rule on the advice of counsel defense, our review is de novo.
DLG’s
belated attempt to address the advice of counsel defense for the first time in
its reply brief is too little too late.
DLG asserts MacMillan failed to prove the defense. But DLG bore the burden of demonstrating a
probability of prevailing, and once the defense was raised by MacMillan, the
burden was on DLG to demonstrate the defense did not apply.
Civil Procedure Before Trial (The Rutter Group 2012) ¶ 7:1015, p. 7(II)-49 [to
demonstrate a “‘probability of success on the merits,’†“[p]laintiff must
present evidence to overcome any privilege or defense to the claim that has
been raisedâ€], citing Flatley,
anti-SLAPP motion Civ. Code § 47, subd. (b) “litigation
privilege presents a substantive defense plaintiff must overcome to demonstrate
probability of success on the meritsâ€].)
DLG made no attempt to do so, and thus the anti-SLAPP motion was
properly granted as to MacMillan.
We turn then to whether DLG met its burden to
demonstrate the attorney defendants lacked probable cause to file and prosecute
the Malpractice Action. We agree with the
trial court that it did not.
(i). The Legal Malpractice and Breach of Fiduciary
Duty Cause of Action
DLG argues it
demonstrated the attorney defendants had no probable cause to file the
underlying Malpractice Action. We
disagree.
DLG relies primarily
upon the fact that we affirmed the summary judgment in its favor. DLG may not rely upon our prior opinion
affirming the summary judgment in its favor to establish it had a probability
of prevailing on its malicious prosecution claim. In Jarrow,
supra, 31 Cal.4th at page 742, our Supreme Court held, “[t]he entry of
summary judgment for the defense on an underlying claim on grounds of
insufficient evidence does not establish as a matter of law that the litigant
necessarily can ‘state[] and substantiate[]’ [citation] a subsequent malicious
prosecution claim.†As
the underlying claim does not establish lack of probable cause as a matter of
law†(ibid.), and “obtaining summary
judgment for the defense on the underlying claim does not necessarily establish
the malice element of a subsequent malicious prosecution claim.†(Id.
at p. 743.)
The elements of a
cause of action for legal malpractice are:
“‘(1) the duty of the attorney to use such skill, prudence and diligence
as members of the profession commonly possess; (2) a breach of that duty; (3) a
proximate causal connection between the breach and the resulting injury; and
(4) actual loss or damage. [Citations.]’ [Citation.]â€
(Wiley v. County of San Diego
(1998) 19 Cal.4th 532, 536.) In our
prior opinion, we concluded MacMillan failed to present sufficient evidence on
causation and damages, i.e., that but for DLG’s alleged negligence in handling
the Unlawful Detainer Action, the result would have been different. (MacMillan,
supra, G044208, typed opinion, p.
18.)
As noted by the trial court, DLG presented no
evidence in opposition to the anti-SLAPP motion concerning its handling of the
Unlawful Detainer Action—indeed DLG characterized the respondents’ evidence in
this regard as being “irrelevant drivel[.]†DLG’s
evidentiary showing on the anti-SLAPP motion focused almost entirely on the
litigation tactics employed by the attorney defendants in the underlying
Malpractice Action. On appeal, DLG
continues to assert evidence concerning how it handled the Unlawful Detainer
Action (particularly the declarations of Kenski Properties personnel Lewis,
Kezeor, and Linda Kenski) has no bearing on the probable cause element of its
Malicious Prosecution Action. Nonsense.
DLG filed and prosecuted
the Unlawful Detainer Action for MacMillan.
The underlying Malpractice Action was premised upon the respondents’
belief Andrews mishandled the Unlawful Detainer Action resulting in a reversal
of the Unlawful Detainer judgment and MacMillan’s exposure to costs in the
Unlawful Detainer Action, as well as to significant damages in the Munoz Breach
of Contract Action. The respondents’
believed Andrews and DLG failed to adequately present two issues that were
litigated in the Unlawful Detainer Action:
whether the renewal options were ever assigned to Munoz and, if so,
whether she timely exercised those options.
They also believed Andrews and DLG failed to investigate or raise an
alternative basis on which Munoz might be evicted: violation of the lease covenants by virtue of
her customers’ obnoxious conduct in and around the premises.
Although we concluded in
our prior opinion MacMillan failed to make an adequate evidentiary showing that
would have allowed him to prevail on the malpractice and breach of fiduciary
duty causes of action, that does not mean the facts concerning the Unlawful
Detainer Action had become irrelevant as to whether there was probable cause to
file and prosecute the Malpractice Action or that it was filed and prosecuted
with malice. We concluded MacMillan
failed to present evidence in opposition to summary judgment creating a
material issue of fact as to causation.
that did not mean the evidence did not exist—only that MacMillan failed to
sufficiently present it in the opposition to the summary judgment motion.
For example, on the
issue of whether the option terms were assigned to Munoz, we observed the
appellate division of the superior court interpreted the plain language of the
assignment (Mill Inn assigned “all of its rights, title and interest in
and to the [l]easeâ€) to include an
assignment of the option terms. We found
MacMillan’s opposition included no evidence leading to a different
interpretation of the assignment agreement, noting that “[s]ignificantly,
MacMillan offered no evidence the assignment was not intended (or at least was
not understood by MacMillan and his agent who drafted the assignment) to
include the options terms.†(
opinion, pp. 19-20.)
In their declarations in
support of the anti-SLAPP motion, Kezeor and Linda Kenski declared there was no
writing specifically consenting to the assignment of the option terms, and they
understood Munoz’s lease would expire upon the original lease term. MacMillan declared neither he nor Kenski
Properties consented to assignment of the options to renew, and at no time did
MacMillan intend for the renewal options to be assigned to Munoz.
Additionally, we
observed with regard to Kezeor’s response of “No†to the Munoz-propounded
interrogatory asking “whether MacMillan contends that Munoz was never granted
an option to the [sic] extend the
lease,†that although MacMillan claimed the response was confusing, “nowhere in
[Kezeor’s] declaration does she state it was not the answer she intended to
give.†(MacMillan, supra, G044208, typed opinion,
pp.
19-20.) In her declaration on the
anti-SLAPP motion Kezeor stated it was not the answer she intended (i.e.,
because the question contained a double negative she answered “Noâ€, when she
meant “Yesâ€), and further that Andrews was aware of her erroneous response
because he prepared and served a corrected response on Munoz (changing the
answer to “Yesâ€).
With regard to the issue
of timeliness of Munoz’s exercise of the option to renew, in reversing the
Unlawful Detainer judgment, the appellate division found MacMillan had not
presented sufficient evidence to rebut “the [Evidence Code section 641]
presumption a letter properly addressed and mailed is received†and Kezeor’s
testimony she never saw the letter
was not relevant to whether it had in fact been received in Kenski Properties’ office “absent evidence as to how
mail was handled in the office (i.e., who opened the mail, how was it processed
and filed?).†(MacMillan, supra, G044208, typed opinion,
p. 20.) Although MacMillan argued
attorney Andrews was negligent in not presenting such evidence at the Unlawful
Detainer trial, the summary judgment opposition made no offer as to what that
evidence was. “MacMillan’s opposing papers
contain no evidence concerning how mail was received in Kenski Properties
office. To prove that ‘but for’ the
attorneys’ alleged breach of the standard of care the result on the mailing
issue would have been different, MacMillan had to have shown there was in fact
evidence from which a trier of fact could have found the presumption of mailing
was overcome. The court cannot speculate
that such evidence existed.†(
opinion, p. 21.)
In the anti-SLAPP
motion, the respondents filled in that evidentiary gap, providing detailed
evidence in declarations from Kenski Properties employees, Lewis, Kezeor, and
Linda Kenski, as to how mail was received and processed in the office from
which a trier of fact could have reasonably concluded Munoz the letter was
never received by Kenski Properties.
(See Tremayne v. American SMW
Corp. (1954) 125 Cal.App.2d 852 [Evid. Code, § 641 presumption
overcome by testimony of office manager about handling of incoming mail and
that the letter mailed by defendants had never been received in the office];
see also Bonzer v. City of Huntington
Park (1993) 20 Cal.App.4th 1474, 1480-1481 [Evid. Code, § 641
presumption overcome by testimony of office employee about who received mail,
how mail was routed, no one recalled seeing document, document should be in the
files, and diligent search turned up no record of it].) Remarkably, in their opposition to the
anti-SLAPP motion, DLG offered no evidence to contradict the factual assertions
made in the Kenski Properties employees’ declarations. Based on the foregoing, the respondents
reasonably believed DLG was negligent in its handling of the Unlawful Detainer
Action and had probable cause to file the underlying Malpractice Action, in
particular with regard to issues that were tried regarding whether the options
were assigned to Munoz and if so whether she timely exercised them. For this reason we need not consider the
respondents’ arguments concerning whether nuisance-type issues should also have
been explored.
(ii). The Emotional Distress Causes of Action
DLG contends it
demonstrated the attorney defendants lacked probable cause to include claims
for negligent and intentional infliction of emotional distress in the
underlying Malpractice Action. (
581, 582,
596-597
[litigant who successfully defended against two claims, only one of which was
supported by probable cause, could maintain a
claim].) Again, we disagree.
DLG contends the
emotional distress causes of action were legally untenable because emotional
distress damages are not recoverable for legal malpractice. Although that is generally the rule, there
are “cases in which the attorney’s
conduct—while not necessarily intentional or
in bad faith—is so reckless and the resulting damage is so foreseeable that
imposition of liability is proper.†(
18 Cal.App.4th 841, 854, disapproved on other grounds in
583, 591, fn. 4; see e.g., Holliday v.
Jones (1989) 215 Cal.App.3d 102 [emotional distress damages where
attorney’s incompetence lead to plaintiff’s wrongful conviction and
incarceration]; Betts v. Allstate Ins.
Co. (1984) 154 Cal.App.3d 688, 718 [emotional distress damages where
attorney’s negligence and breach of fiduciary duties resulted in $500,000
excess judgment against plaintiff putting her through “several years of
unnecessary harassment, emotional distress†during which she was “liv[ing] on
the edge of a financial volcanoâ€].)
DLG
contends the claims were factually untenable because the attorney defendants
had no facts suggesting MacMillan had in fact suffered emotional distress and
at his deposition in the underlying Malpractice Action, MacMillan waived those
claims. Preliminarily, in their
anti-SLAPP motion the respondents provided the court with evidence of
MacMillan’s emotional distress demonstrating there was at least a minimal
factual basis for pleading the emotional distress causes of action in the
Malpractice Action. Chambers declared he
was told by Kezeor and Linda Kenski that MacMillan, a retired
veterinarian, was “shocked†about what had happened in the unlawful detainer
action—he was “scared, very concerned, worried and fearful†over being left
responsible for costs and exposed to significant liability in the Munoz Breach
of Contract Action. Kezeor and Linda
Kenski confirmed MacMillan was distraught about the turn of events in the
Unlawful Detainer Action that left him exposed to significant liability. MacMillan described his significant distress
over the results of the Unlawful Detainer Action—he knew Munoz was planning on
filing a lawsuit against him seeking $5 million in damages and $1 million in
attorney fees and he was “seriously fr
| Description | The Duringer Law Group, Stephen C. Duringer, and R. Scott Andrews (hereafter referred to collectively and in the singular as DLG, unless the context indicates otherwise), appeal from the order dismissing its malicious prosecution complaint against the respondents after the trial court granted the respondents’ special motion to strike the complaint as a strategic lawsuit against public participation (anti-SLAPP motion). (Code Civ. Proc., § 425.16.)[1] The respondents are DLG’s former client Alan MacMillan (MacMillan) and his attorneys, the law firm of Chambers, Noronha & Kubota (CNK), and attorneys Gary L. Chambers, Peter A. Noronha, Yoshiaki C. Kubota, and Jonathan Dwork (sometimes collectively referred to as the attorney defendants, unless the context indicates otherwise), who sued DLG for malpractice related to DLG’s handling of an unlawful detainer action on MacMillan’s behalf. DLG contends the trial court erred by granting the anti-SLAPP motion because it presented sufficient evidence of a probability of prevailing. DLG also challenges the order awarding the respondents their attorney fees as an abuse of discretion. We conclude DLG’s contentions are meritless, and we affirm both orders. |
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