Momjian v. Mehrvak
Filed 8/1/12 Momjian v. Mehrvak CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
ARMAN MOMJIAN,
Plaintiff
and Respondent,
v.
HAMID REZA MEHRVAK et al.,
Defendants and
Appellants.
B234172
(Los Angeles
County
Super. Ct.
No. BC450635)
APPEAL from
an order of the Superior Court
of
County. Barbara
Scheper, Judge. Affirmed.
Law Office of Jay R. Saltsman for
Defendants and Appellants Hamid Reza Mehrvak, Sherri Mehrvak and Jay R.
Saltsman.
Law Offices
of Vip Bhola and Vip Bhola for Plaintiff and Respondent Arman Momjian.
__________________________
Defendants and appellants Hamid and
Sherri Mehrvak and their attorney Jay R. Saltsman (collectively the Mehrvaks)
appeal from an order denying their anti-SLAPP motion. (Code Civ. Proc., § 425.16.) Respondent Arman Momjian (Momjian) was the
plaintiff below. We conclude the trial
court correctly denied the motion and affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
The
procedural history of this case and its companion litigation is not lengthy but
it is convoluted. In summary: One side filed a
went to judgment. The other side then
filed a malicious prosecution action, but then dismissed its complaint. The first side then filed its own malicious
prosecution based on the dismissal of the second lawsuit. The second side then filed an anti-SLAPP
motion in the third lawsuit, a motion the trial court denied. The second side appealed.
The details
follow:
Case No. BC340573: Original
Declaratory Relief Action Filed by O.P.M. Holdings Inc. (Momjian)
Momjian was an officer and director
of O.P.M. Holdings Inc. (OPM). On behalf
of the corporation, Momjian executed a promissory
note in favor of the Mehrvaks. In
2005, OPM brought a declaratory relief action against the Mehrvaks seeking to
establish the parties’ relative obligations under the note. Momjian was not a party to the declaratory
relief action in his individual capacity.
The Mehrvaks prevailed and were awarded nearly $50,000 in principal,
interest, costs, and attorneys fees.
Case No. BC394701: First
Malicious Prosecution Action Filed by the Mehrvaks
In July 2008, buoyed by their
success in the first lawsuit, the Mehrvaks filed a malicious prosecution action
against Momjian, OPM and OPM’s attorney in the declaratory relief action. Attorney Saltsman, also an appellant in the
present appeal, filed the lawsuit on behalf of the Mehrvaks, his clients. The trial court denied a motion to dismiss
the second lawsuit as a SLAPP, and the matter was set for trial. In March 2010, the Mehrvaks dismissed the
lawsuit. No trial took place.
The Present Case For Malicious Prosecution Filed by Momjian
Now it was Momjian’s turn to
reenter the litigation waters, and on December 3, 2010, he filed his own
malicious prosecution action predicated on the Mehrvaks’ previous dismissal of
their malicious prosecution lawsuit. The
Mehrvaks countered by filing an anti-SLAPP motion to strike Momjian’s
complaint.
As is well reported in the
appellate authorities, there are two components to an anti-SLAPP motion. First, the defendant must make a threshold
showing that the challenged cause of action arises out of protected
activity. Second, if that showing is
made, the plaintiff must demonstrate the probability of prevailing on the
claim. (Code Civ. Proc., § 425.16;
29 Cal.4th 82, 88.) In the trial
court, the parties essentially agreed a malicious prosecution action involves
protected activity. (See
189 Cal.App.4th 438, 448.) As to
the second prong, and in anticipation of Momjian’s argument that he was likely
to prevail in his malicious prosecution action, the Mehrvaks argued in the
trial court: (1) Momjian was a proper
defendant in the first malicious prosecution action because although not a
party to the declaratory relief action, Momjian initiated or directed the
litigation as OPM’s managing agent; and (2) the complaint in the current
lawsuit did not even allege lack of probable cause, one of the four elements of
a malicious prosecution claim. (
41 Cal.4th 735, 740 (Siebel).) These facts, argued the Mehrvaks, showed that
Momjian could not prevail in the present malicious prosecution action as a
matter of law. Momjian’s opposition
asserted that all corporations necessarily act through their officers and
directors and the rule that the Mehrvaks were proposing would make all officers
and directors potentially personally liable whenever a corporation might have
filed a lawsuit maliciously. In response
to the Mehrvaks second point, Momjian argued that lack of probable cause was at
least implicit in the complaint.
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In supplemental trial papers, both
parties relied on Wyatt v. Union Mortgage
Company (1979) 24 Cal.3d 773, 784-785 (Wyatt). Appellants
reiterated that Momjian was personally liable for OPM prosecuting the
declaratory relief action because he specifically directed and authorized that
litigation. Momjian countered that the
mere fact he was an officer or director of OPM and attended court proceedings
was insufficient to make him personally liable for the corporation’s alleged
wrongdoing. The trial court denied the
anti-SLAPP motion.
Appellants filed a timely
DISCUSSION
A.
Standard
of Review
As we have
observed, the parties essentially agree that the first prong of the anti-SLAPP
motion has been satisfied. Thus the
trial court was presented only with whether Momjian had demonstrated a
likelihood he would succeed on his malicious prosecution claim. In that setting, the burden shifts to the
plaintiff to demonstrate a probability of prevailing. To do so, the plaintiff must show that (1)
the complaint is legally sufficient and (2) it is supported by a
sufficient prima facie showing of facts to sustain a judgment. (Wilson
v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821;
(2012) 207 Cal.App.4th 180.)
On appeal, we independently review the trial court’s ruling on an
anti-SLAPP motion, considering the pleadings and the supporting and opposing
affidavits filed by the parties. We
accept as true the evidence favorable to the plaintiff and evaluate the
defendant’s counter evidence only to determine whether it has defeated the
evidence submitted by the plaintiff as a matter of law. We do not weigh the credibility or
comparative probative strength of competing evidence. (Ibid.)
B.
The
Complaint Is Legally Sufficient
On appeal,
the Mehrvaks contend the trial court erred in denying their anti-SLAPP motion
because the complaint was legally insufficient.
To allege a
cause of action for malicious prosecution, a plaintiff must plead that the
prior action (1) was commenced by or at the direction of the defendant; (2) was
pursued to a legal termination in the plaintiff’s favor; (3) was brought
without probable cause; and (4) was initiated with malice. (Siebel,
supra, 41 Cal.4th at p. 740.)
The Mehrvaks argue that the complaint does not adequately allege two of
the elements: (1) favorable
termination and (2) lack of probable cause.
We disagree.
A voluntary
dismissal is generally viewed as a favorable termination to the defendant
because it implies that the dismissing party cannot maintain the action. (JSJ
Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1524 (
Appellants have cited no authority, and our independent research has
found none, that requires the exact words “favorable termination” to be
included in a complaint for malicious prosecution. We conclude that no magic words are required
to allege that element and the complaint in this case adequately does so. Paragraph 11 states that case
No. BC394701 (the second lawsuit) was “dismissed without a waiver,
mediation, trial or judgment.” These
words are sufficient to plead favorable termination.
“Probable
cause” is an honest and reasonable belief in the truth of the allegations. (JSJ,
supra, 205 Cal.App.4th at
p. 1526.) It is unreasonable to
prosecute a claim in the complete absence of supporting evidence. (Daniels
v. Robbins (2010) 182 Cal.App.4th 204, 222-221.) “Only those actions that ‘ “any
reasonable attorney would agree [are] totally and completely without
merit” ’ may form the basis for a malicious prosecution suit.” (Wilson
v. Parker, Covert & Chidester, supra, 28 Cal.4th at
p. 817.) No magic words are
required to allege probable cause either.
Paragraph 12 of the complaint alleges that appellants “acted maliciously
in bringing and maintaining [case No. BC394701 against Momjian] in that
[appellants’] purpose was to try to force [Momjian] to pay money for prior
litigation to which he was not a party.
[Appellants’] intent was to harass, embarrass and frustrate [Momjian]
with defending this warrantless lawsuit.” (Italics added.) Although the separate elements of lack of
probable cause and malice are interspersed in the paragraph, the
characterization of case No. BC394701 as a “warrantless lawsuit” is
sufficient to plead lack of probable cause.
C.
Momjian
Made a Prima Facie Factual Showing Sufficient to Support a Judgment for
Malicious Prosecution
The Mehrvaks also contend the trial
court erred in denying their anti-SLAPP motion because Momjian failed to
establish factually a probability of prevailing on the merits. They argue that Momjian’s position as an
officer and director of OPM establishes probable cause to prosecute him personally
for malicious prosecution of the declaratory relief action, and that the
voluntary dismissal of case No. BC394701 was unrelated to the merits. We find no error.
First, we address the favorable
termination element. The undisputed fact
is that appellants dismissed case No. 394701 with prejudice close to the
trial date. A reasonable inference from
that conduct was that the lawsuit was dismissed because the Mehrvaks believed
they could not prevail on the merits. While
a termination only to avoid the cost of litigation is not a favorable termination (JSJ,
supra, 205 Cal.App.4th at p. 1525), attorney Saltsman’s unsworn statement about why case
No. BC394701 was dismissed fell far short of establishing a termination
unrelated to the merits. He made only
vague references to the Mehrvaks having some personal problems and that the
decision to dismiss was difficult. The trial court correctly found that this
proof was insufficient to establish as a
matter of law that the voluntary dismissal did not reflect on the merits.
As to the probable cause element,
the Mehrvaks’ argument focuses not so much on the merits of the second lawsuit
as on the fact that, in their view, it was proper to include Momjian as a
defendant in the second lawsuit. Their
argument continues that since Momjian directed the first lawsuit, it was
reasonable to name him as a party defendant in the Mehrvaks’ malicious
prosecution lawsuit (the second lawsuit).
If this is so, then Momjian himself had no probable cause to file the
present malicious prosecution lawsuit against anyone. The gist of Momjian’s counter-argument is
that no reasonable attorney would have prosecuted a claim for malicious
prosecution (the second lawsuit) against him because he had not initiated or
directed the commencement of the original declaratory relief litigation.
In Wyatt, supra, 24 Cal.3d at page 785, our Supreme Court
reiterated the long-standing rule that “[d]irectors and officers of a
corporation are not rendered personally liable for its torts merely because of
their official positions, but may become liable if they directly ordered,
authorized or participated in the tortious conduct.” To maintain a tort claim against a director
in his or her personal capacity, the plaintiff must “allege and prove that an
ordinary prudent person, knowing what the director knew at that time, would not
have acted similarly under the circumstances.”
(PMC, Inc. v. Kadisha (2000)
78 Cal.App.4th 1368, 1380.)
Here, the undisputed fact that
Momjian was not a party to the declaratory relief action is sufficient to
establish a prima facie case that appellants lacked reason to believe Momjian
initiated or directed the commencement of the declaratory relief action. Appellants’ counter evidence, that Momjian
was an officer and director of OPM and attended all of the hearings in the
declaratory relief action, was not sufficient to defeat as a matter of law
Momjian’s prima facie showing that he was not personally responsible for
initiating the first lawsuit.
DISPOSITION
The order
denying appellants’ anti-SLAPP motion is affirmed. Respondent shall recover his costs on appeal.
RUBIN,
ACTING P. J.
WE CONCUR:
FLIER,
J. GRIMES,
J.
sought leave to file an amended complaint adding the omitted probable cause
language, but the trial court denied that request.
