Gilliland v. Smolowitz
Filed 5/25/06 Gilliland v. Smolowitz CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
ROBERT J. GILLILAND, JR., et al., Plaintiffs and Appellants, v. SINDEE M. SMOLOWITZ et al., Defendants and Respondents. | G035966 (Super. Ct. No. 05CC03619) O P I N I O N |
Appeal from an order of the Superior Court of Orange County, Randall L. Wilkinson, Judge. Affirmed.
Guralnick & Gilliland and Marie A. Mack for Plaintiffs and Appellants.
Sedgwick, Detert, Moran & Arnold, Gregory H. Halliday and Steven S. Streger, for Defendants and Respondents.
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Plaintiffs Robert J. Gilliland, Jr. (Gilliland), and Guralnick & Gilliland, LLP appeal from an order granting an anti-SLAPP motion to strike their complaint. Plaintiffs asserted a malicious prosecution cause of action against defendants Sindee Smolowitz (Smolowitz) and The Sall Law Firm, which arose from defendants' work in a legal malpractice action against plaintiffs. We conclude plaintiffs failed to oppose the anti-SLAPP motion with evidence showing defendants had maintained the legal malpractice action without probable cause. Plaintiffs thus failed to meet their burden of showing a probability of prevailing on their malicious prosecution complaint. We affirm.
FACTS
In prior litigation, defendants represented Kristen Adelman (Adelman) in a legal malpractice action against plaintiffs. Adelman alleged plaintiffs had negligently represented her and her husband in a construction defect case. Plaintiffs obtained judgment on the pleadings against Adelman's legal malpractice action. The court noted the complaint attached a written retention agreement between Adelman's husband and another firm, Brown and Keller (Brown), who had retained plaintiffs as associate counsel. This agreement stated Adelman was not retaining Brown, and would have to execute a separate retention agreement if she desired legal advice from the firm. The agreement contained a signature line for Adelman, whereby she would acknowledge she had not retained the firm to represent her in the construction defect case. She had not signed the acknowledgement. Nonetheless, the court found Adelman's â€
