Echeverria v. Gossai

Filed 11/20/07 Echeverria v. Gossai CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEALS from an order of the Superior Court of Los Angeles County, Raul A. Sahagun, Judge. Affirmed in part, reversed in part, and remanded with directions.

Daniel A.D. Gossai, in pro. per., for Defendant and Appellant.

Paul J. Derania for Defendant and Appellant Scott S. Furstman.

Stephen Allan Shikes for Plaintiffs and Respondents.

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Two defendants -- a lawyer and his client in the underlying action -- filed special motions to strike a malicious prosecution action. Both motions were denied, and both defendants appeal. We reverse the order denying the lawyers motion but affirm the other order.

FACTS

A.

Bessy Echeverria, Saira Echeverria, and Maria Quinones attended Daniel Gossais California Alternative High School. In exchange for the tuition they paid, they received diplomas.

In 2003, the students filed separate small claims court actions against Gossai and his school, alleging that their so-called diplomas were not recognized by the State of California or any college or prospective employer, and seeking reimbursement of their tuition payments. Gossai and the school failed to answer and default judgments were entered against them.

Gossai then filed a pro se complaint against the students, alleging a variety of torts and asking for $2 million in damages. In separate proceedings, he successfully moved to vacate the small claims court judgments, and the claims the students had asserted in those proceedings were denominated cross-complaints and consolidated with Gossais action. After all the pleadings were filed, Gossai retained Scott S. Furstman to defend him and his school.

In 2005, the case was tried to the court, which entered a judgment in favor of the students on Gossais complaint and on their cross-complaint based on findings that the brochures and other written materials published by Gossai and his school were fraudulent and deceptive. The court awarded $6,000 to each of the students as general damages, and $575 to each as special damages, plus costs.

B.

In December 2005, the students sued Gossai and Furstman for malicious prosecution. In April 2006, Gossai and Furstman filed separate special motions to strike (Code Civ. Proc., 425.16), both of which were denied.[1] Gossai (appearing in propria persona) and Furstman (represented by counsel) appeal.

DISCUSSION

I. Gossais Appeal

Gossais pro se brief is based in substantial part on matters outside the record (he has apparently litigated with the State of California about the legitimacy of his school), and he does not offer any cogent argument about the propriety of the trial courts ruling on his special motion to strike. In short, he has not met his burden on appeal, which is to show prejudicial error. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 [the trial courts ruling is presumptively correct, and the burden of affirmatively demonstrating error is on the appellant]; McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523 [we are not required to make an independent, unassisted study of the record in search of error].)[2] The order denying Gossais motion must be affirmed.[3]

II. Furstmans Appeal

Because it is undisputed that section 425.16 applies to malicious prosecution actions (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728; White v. Lieberman (2002) 103 Cal.App.4th 210), the only issue is whether the students met their burden of showing a probability of success against Furstman on their malicious prosecution claim (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67), which would require proof that Furstman commenced or maintained the underlying action without probable cause and with malice (Crowley v. Katleman (1994) 8 Cal.4th 666, 676). Thus, to prevail on their special motion to strike, they had to demonstrate a probability of prevailing on the issues of probable cause and malice. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) They did not do so, which means Furstmans special motion to strike should have been granted.

We begin with the evidence Furstman submitted (his own declaration), which if undisputed establishes that he did not initiate the underlying action (Gossai filed a pro se complaint) or maintain it, and that the most Furstman did was to ask the court in the underlying action to reconsider a ruling regarding an award of attorneys fees issued in Furstmans absence. In short, all Furstman did was to defend Gossai against the students cross-complaint.

When we turn to the students opposition to Furstmans special motion to strike, we find it was filed without a supporting declaration and without any suggestion that there exists any evidence to show that Furstman prosecuted or maintained Gossais complaint (without probable cause and with malice, or at all). Although their memorandum of points and authorities offers the conclusory assertion that Furstman was actively instrumental in the maintenance of the underlying action, the students do not include any facts and they do not dispute Furstmans declaration about the limited nature of his involvement. In practical effect, their claim is that Gossai was not entitled to have a lawyer defend him in the underlying action. The students offer no citations to suggest that a malicious prosecution action can be pursued against a lawyer defending his client against a complaint, and we know of no such law.[4]

Because the students did not establish a probability of prevailing on their claim against Furstman, his special motion to strike should have been granted (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67) and he should have been awarded his fees and costs ( 425.16, subd. (c)). He is also entitled to recover the fees he has incurred on this appeal. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1267.)

DISPOSITION

The order denying Gossais special motion to strike is affirmed and, as to that appeal, the students are entitled to their costs of appeal. The order denying Furstmans special motion to strike is reversed, and the cause is remanded to the trial court with directions (1) to enter a new order granting Furstmans motion, including his request for attorneys fees and (2) to determine the amount of attorneys fees recoverable by Furstman for both the trial court and appellate proceedings; as to Furstmans appeal, he is awarded his costs of appeal.

NOT TO BE PUBLISHED.

VOGEL, Acting P.J.

We concur:

ROTHSCHILD, J.

JACKSON, J.*

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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] All section references are to the Code of Civil Procedure.

[2] We nevertheless have reviewed Gossais special motion to strike (as originally filed and as amended) and based on that review have concluded it was properly denied.

[3] On November 13, 2007, Gossais family informed us that he had died on September 20, 2007, but no application was made to substitute a personal representative in his place; to the contrary, the family informally requested dismissal of his appeal. Under these circumstances, our jurisdiction continues to decide this appeal. (Martin v. Wagner (1899) 124 Cal. 204.)

[4] The students lawyer, in a declaration filed with the students malicious prosecution complaint, states in a similarly conclusory manner that Furstman represented Gossai and maintained Gossais vindictive and retaliatory lawsuit against [the students], continuing to do so even after Gossai had been declared a vexatious litigant and had reached a stipulated settlement with the State of California. Nothing in this statement establishes that Furstmans defense of Gossai in the underlying action will support a malicious prosecution claim.