Silas v.
Filed 12/31/12
Silas v. Arden CA2/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
MARTINA A.
SILAS,
Plaintiff and Respondent,
v.
JAMES ELLIS
ARDEN,
Defendant and Appellant.
B235835
(Los Angeles County
Super. Ct. No.
BC383823)
APPEAL
from a judgment of the Superior Court of
County, Kenneth R. Freeman, Judge. Affirmed.
James
Ellis Arden, in pro. per.; Marcarian Law Firm, Armond Marcarian and
Marc L. McCulloch for Defendant and Appellant.
Martina
A. Silas, in pro. per., for Plaintiff and Respondent.
——————————
James Ellis Arden (Arden) appeals
judgment in favor of Martina Silas (Silas) in Silas’s action against Arden for
action against her. Silas represented
Ross Gunnell (Gunnell) in a personal injury action resulting in a jury award
that was later overturned on the grounds that worker’s compensation was the
exclusive remedy. Gunnell filed a
malpractice action against Silas, asserting she failed to assert a meritorious
defense to worker’s compensation exclusivity, and Gunnell was represented by Arden in that
action. Silas’s motion for summary
judgment was granted in Gunnell’s malpractice action, and she commenced this
action for malicious prosecution against Arden, resulting in
a jury award.
On
appeal, Arden contends the action is barred by the one-year
Procedure section 340.6, and insufficient evidence supports the malicious
prosecution award and punitive damages.
We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. The Gunnell v. Metrocolor Litigation
Silas
represented Gunnell in this personal injury action, filed in 1995. Gunnell and others were unskilled laborers
who worked for four and one-half months on a cleaning project at Metrocolor
Laboratories, Inc. (Metrocolor), which owned a facility to develop and process
movie and television film.
name="_ftnref2" title="">[2] Gunnell worked at cleaning walls, pipes, and other
parts of the interior of the film lab.
The workers cleaned the lab using a substance they believed was cleaning
soap. Metrocolor provided no hazard
training, posted no signs about chemical hazards, and did not tell the workers
what they were using to clean. Gunnell
observed one of the Metrocolor supervisors removing a label from the 55-gallon
drums containing the cleaning substance.
The workers transferred the undiluted liquid to buckets and sprayers and
used mops to remove dirt from the ceiling, repeating the procedure several
times. Gunnell testified that the
cleaning substance rained down on him, making contact with his skin, running
down his back and chest, and getting inside his gloves. After a day’s work, Gunnell was soaked in
cleaning solution. Metrocolor provided
no protective clothing other than rubber gloves, which rapidly
disintegrated. Gunnell was never told
what the solution was, but later learned it was Absorb, a solvent/degreaser,
that contained a hazardous substance known to cause brain and nervous system
damage and that was readily absorbed through the skin. Gunnell suffered from anxiety and panic
attacks, loss of cognitive function, and respiratory problems, and was disabled
from work as a laborer.
Pursuant
to instruction on an exception to worker’s compensation exclusivity under Labor
Code section 3602, subdivision (b)(1)
(employer’s willful assault) based upon Gunnell’s unconsented contact with
hazardous chemicals, the jury returned a verdict of $1,650,000 in compensatory
damages and $5 million in punitive damages.
Pursuant to Metrocolor’s motion for judgment notwithstanding the verdict
based on the holding of Johns-Manville
Products Corp. v. Superior Court (1980) 27 Cal.3d 465, the court found that
pursuant to Labor Code section 3602, subdivision (a), worker’s compensation
provided Gunnell’s exclusive remedy.
The
Court of Appeal in Gunnell v. Metrocolor
Labs, Inc., supra, 92 Cal.App.4th
at page 714 affirmed the trial court, finding that the action fell within the
scope of section 3602, subdivision (a), and did not fall within the exception
to worker’s compensation exclusivity found in section 3602, subdivision
(b)(1). The court found the exception
required a criminal battery consisting of a willful physical assault, namely the
use of force or violence. As Metrocolor
did not use physical force or violence, the exception did not apply. (Gunnell,
B
Malpractice Action Against Silas
In
December 2002, Gunnell filed his malpractice
action in pro. per., and in October 2003, Arden and his law firm
substituted in as counsel. Silas
defended on the basis the complaint Silas filed on Gunnell’s behalf alleged, in
addition to the exception of section 3602, subdivision (b)(1), that the
statutory exception for “fraudulent concealment†under section 3602,
subdivision (b)(2) also removed Gunnell’s injuries from workers’ compensation
exclusivity and let him pursue a civil action in superior court.
claim form surfaced showing Gunnell had sought medical care for red and
cracking skin on his hands a few days after he started working for
Metrocolor. The form stated Gunnell
blamed the cleaning solution for his skin condition. After the form surfaced, Silas abandoned the
fraudulent concealment theory, and solely relied on the theory of “willful
physical assault,†arguing Metrocolor’s misrepresentations about the cleaning
solvent constituted a criminal battery because Metrocolor’s deceitfulness made
appellant’s exposure to the solvent a nonconsensual touching under section
3602, subdivision (b)(1).
name="_ftnref5" title="">[5]
Silas
moved for summary judgment, arguing the fraudulent concealment exception as a
matter of law did not apply, and thus she did not commit malpractice by
abandoning it before trial. The trial
court agreed and entered summary judgment in her favor. The Court of Appeal affirmed this decision,
finding that the fraudulent concealment exception applies when an employer
conceals from an employee a work-related injury. The court found an employer’s
misrepresentations or concealment of workplace hazards remained under the
umbrella of workers’ compensation exclusivity, relying on Johns-Manville Products Corp., supra,
27 Cal.3d at pages 469, 474–475. In
particular, the Court of Appeal noted that Metrocolor lied about the hazards of
the cleaning solution, but it did not conceal from Gunnell any medical
information or information about his injury.
Gunnell himself attributed his skin problems to the cleaning solution,
and as the court explained in rejecting fraudulent concealment in appellant’s
lawsuit against Metrocolor in Gunnell v.
Metrocolor, supra,
Metrocolor deceived and defrauded him by not revealing that Absorb was unsafe
to use in the employment, assured Gunnell that Absorb was safe to use, did not
provide adequate gloves, clothing, or other protective gear, did not provide
training in using and handling of Absorb, removed warning labels from Absorb
containers, and violated government safety regulations regarding use of Absorb
and warnings to employees about its toxic chemical properties. Under Johns-Manville,
an injury to an employee caused by an employer’s deceit and concealment of
hazardous substances used in the employment, failure to train, and failure to
assure a safe workplace environment remains within the course of
employment. Johns-Manville thus confines Gunnell’s remedies to those provided
by the [Workers’ Compensation Act].†(
The
remittur issued March 29, 2006.
C
Action for Malicious Prosecution Against Arden
On
January 15, 2008, Silas filed her complaint for malicious prosecution and abuse
of process against Arden, his law firm (Scott, Arden & Salter), and several
other attorneys involved in the malpractice action who are not parties to this
appeal. Silas’s operative First Amended
Complaint was filed on January 31, 2008.
Silas asserted that (1) Arden continued to prosecute the claim for
misappropriation of settlement funds throughout three versions of the
complaint, even when confronted with checks Gunnell endorsed and a notarized
settlement agreement; and (2) argued that she should have asserted the
section 3602 subdivision (b)(2) exception although Gunnell’s own testimony
about his chapped hands undermined a key component of the theory, namely that
he was unaware of the cause of his physical ailments.
1. Arden’s Motion to Strike
On
April 24, 2008, Arden made a special motion to strike under Code of Civil
Procedure section 425.16, principally arguing that Silas had no probability of
prevailing on the merits because she failed to assert in the
to worker’s compensation exclusivity under section 3602, subdivision
(b)(2). The trial court granted the
motion as to the abuse of process cause of action, but denied it as to the
malicious prosecution claim. We affirmed
the trial court’s ruling, finding that Silas had a likelihood of prevailing on
the merits, relying primarily on the trial court’s grant of summary judgment in
the Metrocolor action.
2. Trial
The
matter went to trial on Silas’s claim for malicious prosecution in April 2011.
Silas
testified that in preparing Gunnell’s case for trial, she researched the
conclusion the fraudulent concealment exception of section 3602 subdivision
(b)(2) did not apply because the employer must conceal the condition from the
employee, and the employee cannot know he is injured. Gunnell testified at his Metrocolor deposition that he did not have any symptoms during his
employment. However, during the
Metrocolor trial, it came to light that Gunnell had seen a doctor for a mild
hand irritation. Silas concluded that
the section 3602, subdivision (b)(2) exception would not apply because Gunnell
was aware of the condition during his employment and believed it had been
caused by his employment, and there was no evidence Metrocolor was aware of, or
aggravated, Gunnell’s condition.
Silas
believed the physical assault exception applied because Gunnell did not know
what the soap solution contained, and courts in other states had permitted such
actions to go forward where the employer hid the nature of harming agent; in
such cases, they were argued as a battery.
California had not ruled on the issue.
Arden
testified his primary assertion of malpractice was based on his contention that
Silas should have taken both theories of recovery under section 3602 to trial;
she dropped the fraudulent concealment theory without explanation; and the
theory Silas took to trial, willful injury, was in Arden’s belief the wrong
theory based on the facts of the case.
In 2004, after completion of the malpractice action, Gunnell suddenly
recalled a conversation he had with his physician in 1989 regarding hand
irritation, and a conversation he had with his supervisor at Metrocolor. Although Arden knew of Gunnell’s
recollections, Gunnell never mentioned them to Silas.
Nonetheless,
Arden did not read all of Gunnell’s trial testimony in the Metrocolor case before opposing Silas’s motion for summary
judgment. Arden did not believe an
attorney advancing a theory would first research the case law to see how courts
had applied the statute. He was more
concerned with the facts of his case, and did not agree that
issue of whether the fraudulent concealment exception applied. He did not recall reading Gunnell’s 1997
deposition testimony regarding his rash from the cleaning solution.
Arden
understood that for Gunnell to prevail on malpractice that Arden had to prove
that Silas would have been successful on the
With
respect to the claim for misappropriation, the fee agreement between Silas and
Gunnell provided that Gunnell was responsible for costs incurred, and in the
event of a settlement, Gunnell would reimburse Silas for all costs advanced
before he was entitled to settlement funds.
In connection with the settlement with defendants Eastman Kodak Company
and Van Waters & Rogers in the Metrocolor
action in February 1999, the costs incurred of $100,000 exceeded the settlement
of $20,000. Silas gave Gunnell $2,500 of
the proceeds although the fee agreement did not require her to do so. At the time of settlement, Silas witnessed
Gunnell sign the checks and settlement documents, and witnessed the notary
certifying Gunnell’s signature. The
checks were endorsed by Gunnell and the signature on the checks and settlement
agreement are identical. Gunnell
deposited the Van Waters check into his account. Nonetheless, Gunnell asserted in the
malpractice action that Silas forged his signature on the Van Waters check.
Arden
did not investigate Gunnell’s allegations regarding misappropriation of
settlement proceeds because the main theory of the case was the alleged failure
to assert the section 3602, subdivision (b)(2) exception. He did, however, understand the allegations
of misappropriation were serious ethical violations. Arden did not serve any requests for
production of documents regarding the misappropriation allegations because the
“focus of the malpractice case was elsewhere.â€
At
trial, Arden asserted that when he was shown at Gunnell’s deposition in
February 2004 the settlement documents and checks with Gunnell’s notarized
signature indicating Gunnell had received the funds, Arden nonetheless still
believed Gunnell had a case for misappropriation of funds. However, Arden’s actual doubts in February
2004 about Gunnell’s claims were exposed at Arden’s January 2011 deposition
when he admitted he had doubts whether the misappropriation claim had merit;
once he was shown the checks, Arden decided not to pursue the misappropriation
claim. Arden admitted at trial he
recognized Gunnell’s signatures on the settlement documents and checks.
Arden
did not agree an attorney had a duty to withdraw meritless allegations when it
was discovered the allegations did not have any basis, contending his primary
duty was to his client. The amended
complaint, filed after Arden substituted in, contained the same allegations
because he needed to get another pleading on file after Silas filed a demurrer. Nonetheless, three months after Gunnell’s
deposition, in May 2004, Arden served a second amended complaint containing the
misappropriation allegations. In July
2004, after receiving the summary judgment motion, Arden filed a third amended
complaint containing the misappropriation allegations. Arden claimed he knew of no procedure to
withdraw allegations from a pleading.
Arden
disputed how Silas had disbursed the settlement funds because it did not agree
with the retainer agreement, and that was the basis for his continuing the
assert the misappropriation theory.
Arden questioned the notarized settlement documents because the
notarization did not state the documents the notary witnessed Gunnell
signing. He did not object to the
settlement documents on the basis they were forgeries, but that he did not find
them to be properly authenticated.
Even
after receiving the summary judgment motion, Gunnell did not offer to withdraw
the misappropriation claim. Further,
Arden did not withdraw the misappropriation claim after being repeatedly asked
to do so.
Arden
denied harboring any malice towards Silas.
He did not harass her in any fashion because Silas was represented by a
lawyer. He did not believed she had
“phonied up†the notarization, but that
“it wasn’t the proof it was being asserted to be.†Arden had no reason to disbelieve Gunnell’s
misappropriation allegations. Arden,
however, hoped that Gunnell would not press the misappropriation issue. For that reason, he did not investigate the
validity of the notarization because “it wasn’t part of the case I needed to go
forward with.†Howver, he did not inform
Silas that he did not intend to go forward with the misappropriation issue
because “I would have breached a duty to my client.†In his opinion, he would be committing
malpractice to concede his client’s case had no merit.
Silas
argued the case to the jury on the theories that Arden lacked probable cause
because Silas was not negligent in failing to present the jury in the
supported by the law, and the facts did not support Gunnell’s misappropriation
claim; further Arden harbored malice based on his lack of research into the law
and his failure to review the trial testimony in the Metrocolor action. The
evidence supported an inference based on this lack of research that Arden
prosecuted the malpractice action for the purpose of extracting a nuisance
settlement from Silas.
On
April 25, 2011, after closing arguments at trial, Arden filed his amended
answer, asserting a statute of limitations defense based upon the recent
decision of Vafi v. McCloskey (2011)
193 Cal.App.4th 874 (Vafi), which
held that under section 340.6, a one-year statute of limitations applied to a
malicious prosecution action against an attorney.
The
jury found for Silas and awarded $145,756 in legal fees and costs, $30,000 in
noneconomic damages, and $125,000 in punitive damages. The special verdict form asked the jury
whether Arden prosecuted the malpractice action for a purpose of other than
succeeding on the merits of the claim.
They answered “yes.â€
3. JNOV
On
June 29, 2011, Arden filed a motion for judgment notwithstanding the verdict
(JNOV), arguing the matter was barred by the recent decision of
supra, 193 Cal.App.4th 874, which
held that under Code of Civil Procedure section 340.6, a one-year statute of
limitations applied to a malicious prosecution action against an attorney;
thus, Silas’s action, filed more than two years after the favorable termination
of the Gunnell action, was untimely.
Further, there was no evidence he lacked probable cause or that he acted
with malice.
Silas
opposed contending that the trial court was not bound by the
retroactive, Vafi was incorrectly
decided, and the opinion of the Court of Appeal on Arden’s motion to strike was
law of the case.
The
trial court denied Arden’s motion for judgment notwithstanding the verdict,
finding that the Vafi decision should
not be given retroactive effect because the long-accepted and widely
relied-upon practice in the legal community was that a two-year statute of
limitations under Code of Civil Procedure section 335.1 applied to malicious
prosecution actions, as demonstrated by the fact Arden never raised the defense
until the Vafi decision was
issued. Further, the court found Arden
had waived the defense because of his failure to raise it earlier, and struck
its own order granting leave to Arden to file an amended answer.
Arden
principally argues that Vafi,
action as untimely filed more than one year after the successful termination of
the Gunnell action, and that
insufficient evidence supports the jury’s verdicts on liability and damages.
I. Statute
Of Limitations
Without
addressing the question of retroactive application of Vafi, Arden argues that
Silas’s action is barred by the one-year limitations period of Code of Civil
Procedure section 340.6, subdivision (a), because she commenced her action on
January 15, 2008, more than one year after the remittitur issued on March 29,
2006 in Gunnell v. Silas. Silas argues Vafi, the case upon which
Arden relies, should not be applied retroactively, and that Arden waived the
defense by failing to raise it earlier.
Background
Silas’s
complaint and first amended complaint for malicious prosecution alleged a
two-year statute of limitations applied and that her action was timely. Arden’s motion to strike, filed in April
2008, did not raise a statute of limitations defense. Arden’s answer did not assert a statute of
limitations defense. In April 2011, at
trial, Arden orally moved to amend his complaint to assert the limitations
defense. The motion was made after both
parties had rested and the jury was deliberating.
Silas
objected to Arden’s amended answer, contending he had waived the statute of
limitations defense by not raising it earlier.
The trial court permitted Arden to amend his answer. However, when it ruled on Arden’s JNOV motion
in August 2011, the court, to correct its own error, struck Arden’s amended
answer because Arden had waived the right to assert the defense. The court noted that the action was filed in
January 2008, and more than three years later, in April 2011, Arden moved to
amend his answer—after having made a motion to strike, proceeding to trial, and
more than a month after the Vafi decision. The court stated, “Although the court granted
the motion to amend, that decision was clearly in error because it resulted in
great prejudice to the plaintiff. Had
this [statute of limitations] issue been timely and successfully raised, three
years of intense litigation would have been avoided.â€
B. Retroactivity of Application of Section
340.6 to Malicious Prosecution Actions Against Attorneys
In
Stavropulous v. Superior Court (2006)
141 Cal.App.4th 190 (Stavropulous),
the court held that the two-year limitations period of Code of Civil Procedure
section 335.1
name="_ftnref6" title="">[6]
applied to actions for malicious prosecution, rather than the one-year period
of former Code of Civil Procedure section 340, subdivision (3).
at p. 197.) Stavropulous evaluated the legislative history of the respective
statutes, and noted that the one-year statute of Code of Civil Procedure
section 340, subdivision (3)—applying to actions for libel, slander, assault,
battery, or false imprisonment—while covering actions akin to an action for
malicious prosecution, did not list that tort.
As a result, historically, case law held that malicious prosecution
actions fell within the two-year “‘catch-all’†provision of Code of Civil
Procedure section 339, subdivision (1).
However, after section 340, subdivision (3) was amended in 1905 to
include actions for the injury or death of another caused by a wrongful act,
the one-year period of section 340, subdivision (3) applied to actions for
malicious prosecution. Nonetheless, in
2002, section 340, subdivision (3) was amended, renumbered section 340,
subdivision (c), and eliminated the phrase “‘for injury to or for the death of
one caused by the wrongful act or neglect of another.’†At the same time, the legislature enacted
Code of Civil Procedure section 335.1, which covered actions for assault,
battery, or injury to or death of another caused by the wrongful act or
negligence of another. (
prior to the enactment of section 335.1 and amendment of section 340,
subdivision (3), judicial decisions held that malicious prosecution actions
were to be grouped with injuries to the person for purposes of the statute of
limitations. (Id. at p. 196.) Thus,
legislature intended the language “‘injury to or for the death of an
individual, caused by the wrongful act or neglect of anotherâ€â€ to encompass
malicious prosecutions actions; thus, the two-year limitations period of
section 335.1, governed such actions. (
However,
in Vafi, supra, 193 Cal.App.4th 874, the court held that the one-year period
of Code of Civil Procedure section 340.6, subdivision (a) applied to malicious
prosecution actions against an attorney.
its conclusion on the reasoning that section 340.6 referred to a “plaintiffâ€
rather than a “client;†(Vafi, at
p. 882) based on its plain language, “section 340.6 applies to all
actions, except those for actual fraud, brought against an attorney ‘for a
wrongful act or omission’ which arise ‘in the performance of professional
services.’†(Vafi, at p. 881.) The
statute does not exempt malicious prosecution actions from its limitations
period, and if, as here, “‘exemptions are specified in a statute, [courts] may
not imply additional exemptions unless there is a clear legislative intent to
the contrary.’†(Ibid.) Finally, under
traditional rules of statutory construction, “the more specific statute of
limitations in section 340.6 overrides the general catchall statute†provided
in section 335.1. (Vafi, at p. 881.)
In
general, statutes operate prospectively, while judicial decisions operate
retroactively to pending cases. (
Cal.3d 1188, 1207.) “‘“[A] retrospective
law is one that affects rights, obligations, acts, transactions, and conditions
which are peformed or exist prior to the adoption of the statute.â€â€™â€ (Id.
at p. 1206.) Although as a general rule judicial
decisions are to be given retroactive effect, there is a recognized
exception: “‘when a judicial decision
changes a settled rule on which the parties below have relied,’â€
“‘considerations of fairness and public policy may require that a decision be
given only prospective application.’†(
378.) “‘Particular considerations
relevant to the retroactivity determination include the reasonableness of the
parties’ reliance on the former rule, the nature of the change as substantive
or procedural, retroactivity’s effect on the administration of justice, and the
purposes to be served by the new rule.
[Citations.]’†(
unforeseeable procedural change is disfavored when such application would
deprive a litigant of ‘any remedy whatsoever.’â€
(Woods v. Young (1991) 53
Cal.3d 315, 330.)
At
the time Silas commenced her action in 2008, the prevailing view, as evidenced
by judicial decisions, including Stavropulous,
was the two-year statute of limitations of section 335.1 applied to malicious
prosecution actions. More than three
years after Silas commenced her action, and more than five years after the
cause of action accrued with the favorable termination of the malpractice
action in her favor, the Court of Appeal in Vafi
interpreted Code of Civil Procedure section 340.6 to apply malicious
prosecution actions against attorneys.
Even assuming Vafi correctly
decided the issue, and although malicious prosecution actions are disfavored,
as Vafi noted, there is no reason to
apply Code of Civil Procedure section 340.6, subdivision (a) here, where in the
face of the unforeseen change wrought by Vafi,
Silas’s reliance on a two-year statute was manifestly reasonable. For this reason, we need not consider Arden’s
related arguments that the trial court erred in vacating its order permitting
Arden to amend his answer to add the statute of limitations defense or that the
court erred in weighing the relative prejudices to the parties of permitting
Arden to assert the defense because in light of our ruling, he has suffered no
prejudice from the court’s order.
II. SUFFICIENCY
OF EVIDENCE, MALICIOUS PROSECUTION
Arden
argues the record is devoid of evidence that he lacked probable cause or
harbored malice towards Silas in bringing the malpractice action against
her. Arden claims that Gunnell initially
filed the action, and that he could not know whether Gunnell’s version of facts
was accurate until he had litigated the case; further, his duty was to Gunnell;
in any event, he did not actively pursue the misappropriation claim.
To
establish a cause of action for malicious prosecution, a plaintiff must prove
that the underlying action was (1) terminated in the plaintiff’s favor, (2)
prosecuted without probable cause, and (3) initiated with malice. (Zamos
v. Stroud (2004) 32 Cal.4th 958, 965.)
A claim for malicious prosecution need not be addressed to an entire
lawsuit; it may, as in this case, be based upon only some of the causes of
action alleged in the underlying lawsuit.
(Bertero v. National General Corp.
(1974) 13 Cal.3d 43, 57 [“We see no reason for permitting plaintiffs . . . to
pursue shotgun tactics by proceeding on counts and theories which they know or
should know to be groundlessâ€]; see also Crowley
v. Katleman (1994) 8 Cal.4th 666, 678–679.)
The
existence or absence of probable cause is a question of law to be determined by
the court from the facts established in the case. (Sheldon
Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 875.) “The question whether, on a given set of
facts, there was probable cause to institute an action requires a sensitive
evaluation of legal principles and precedents.â€
(Ibid.) This is because “‘[c]ounsel and their clients
have a right to present issues that are arguably correct, even if it is
extremely unlikely that they will win.’â€
(Id. at p. 885.) Thus, the court “must properly take into
account the evolutionary potential of legal principles†and determine, in light
of the facts known to counsel, “whether any reasonable attorney would have
thought the claim tenable.†(
Cal.App.3d 547, 568 [“A litigant will lack probable cause for his action if he
relies upon facts which he has no reasonable cause to believe to be true, or
seeks recovery upon a legal theory which is untenable under the facts known to
himâ€].) This is an objective standard,
and does not take into account the subjective mental state of the defendant; if
the underlying claims were objectively tenable, the malicious prosecution claim
fails, regardless of any evidence of malice on the part of the defendant. (Sheldon
Appel, supra, 47 Cal.3d at p.
875.)
“‘The
malice element of the malicious prosecution tort goes to the defendant’s
subjective intent . . . . It is not limited to actual
hostility or ill will toward the plaintiff.’
[Citation.] It can exist, for example,
where the proceedings are initiated for the purpose of forcing a settlement
which has no relation to the merits of the claim. A lack of probable cause is a factor that may
be considered in determining if the claim was prosecuted with malice
[citation], but the lack of probable cause must be supplemented by other,
additional evidence. [Citation.] Since parties rarely admit an improper
motive, malice is usually proven by circumstantial
evidence and inferences drawn from the evidence.†(HMS
Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 218.) “Merely because the prior action lacked legal
tenability, as measured objectively, i.e., by the standard of whether any
reasonable attorney would have thought the claim tenable [citation],
reasonably permit the inference that such lack of probable cause was
accompanied by the actor’s subjective malicious state of mind. In other words, the presence of malice must
be established by other, additional evidence.
[¶] . . . [T]hat evidence must include proof of
either actual hostility or ill will on the part of the defendant or a
subjective intent to deliberately misuse the legal system for personal gain or
satisfaction at the expense of the wrongfully sued defendant. [Citation.]â€
(Downey Venture v. LMI Ins. Co. (1998)
66 Cal.App.4th 478, 498–499.) “‘Suits
with the hallmark of an improper purpose’†are those where “‘“‘(1) the person
initiating them does not believe that his claim may be held valid; (2) the
proceedings are begun primarily because of hostility or ill will; (3) the
proceedings are initiated solely for the purpose of depriving the person
against whom they are initiated of a beneficial use of his property; (4) the
proceedings are initiated for the purpose of forcing a settlement which has no
relation to the merits of the claim.’â€â€™â€
(Sycamore Ridge Apartments, LLC v.
Naumann (2007) 157 Cal.App.4th 1385, 1407.)
With
respect to probable cause, the jury’s verdict of malicious prosecution based
upon the lack of merit to Arden’s claim Silas failed to assert the section
3602, subdivision (b)(2) exception is supported by sufficient evidence. “As a general rule, an employee injured in
the course of employment is limited to the remedies available under the
Workers’ Compensation Act.†(
Cal.App.4th 519, 521.) In
306, the California Supreme Court explained that “[a]n employee who suffers an
injury in the course of his employment may recover damages in an action at law
only if he comes within certain exceptions to the workers’ compensation
law.†The Supreme Court also explained
that “[o]ne of these exceptions is embodied in [section 3602(b)(2)]. It provides that an action at law may be
brought ‘[w]here the employee’s injury is aggravated by the employer’s
fraudulent concealment of the existence of the injury and its connection with
the employment, in which case the employer’s liability shall be limited to
those damages proximately caused by the aggravation.’†(Foster,
at p. 308, fn. omitted.) Thus, to
recover under this exception, the plaintiff needed to prove that (1) the
employer knew of the plaintiff’s work-related injury; (2) the employer
concealed the knowledge from the plaintiff; and (3) the injury was
aggravated as a result of such concealment.
(Foster, at p. 312;
(1996) 44 Cal.App.4th 1790, 1794.) If
any one of these conditions is lacking, the exception does not apply and the
employer is entitled to judgment in its favor.
(Hughes Aircraft Co., at p. 1797.) The exception does not apply where the
employee was aware of the injury at all times.
(Jensen v. Amgen, Inc. (2003)
105 Cal.App.4th 1322, 1326.)
Here,
Silas argued two bases for lack of probable cause: first, that Arden could not argue her negligence
in failing to bring a claim based upon an inapplicable exception to worker’s
compensation exclusivity, and second he lacked any factual basis for believing
Gunnell’s misappropriation claims when presented with the notarized settlement
documents and endorsed checks which admittedly all contained Gunnell’s genuine
signature. The fraudulent concealment
exception did not apply as a matter of law based upon Johns-Manville Corp., supra,
employer conceal from the employee medical information about the employee’s
condition. Gunnell was aware of his
condition and its cause, and his statements in 2004 that he recalled speaking
to a Metrocolor supervisor were facts (whether true or not) that he had not
communicated to Silas, an omission which he admitted to Arden. Further, Arden continued to prosecute the
misappropriation claim by including it in Gunnell’s amended complaints, which
were filed even after confronted with Gunnell’s signatures on all relevant
documents.
With
respect to malice, the evidence established Arden’s failure to investigate the
merits of applicability of the fraudulent misrepresentation exception and his
failure to withdraw allegations of misappropriation even when confronted with
unequivocal evidence the allegations were not supported by the facts. Sufficient evidence supports the jury’s
verdict.
III. EXCESSIVE DAMAGES
Arden
finally argues that the punitive damages award was improper because Silas’s
arguments regarding Arden’s motivation and her emotional distress prejudiced
the jury, and the compensatory award included sums for legal fees and costs
that were paid by her malpractice insurance carrier.
The
record submitted to this court does not reveal the filing of a motion for new
trial on the ground of excessive damages.
(Code Civ. Proc., § 657, subd. (5).)
An appellant is not entitled to review of whether a jury awarded
excessive punitive damages unless the issue has been properly preserved by a
v. Kinder (2003) 109 Cal.App.4th 510, 519; Schroeder v. Auto Driveway Co. (1974) 11 Cal.3d 908, 918–919.)
On
the second point, the collateral source rule provides that “‘if an injured
party receives some compensation for his injuries from a source wholly
independent of the tortfeasor, such payment should not be deducted from the
damages which the plaintiff would otherwise collect from the tortfeasor.’†(Howell
v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 551.) However, even if Arden were entitled to an
offset, the record is devoid of evidence concerning any payments made to Silas
by her malpractice insurance carrier. As
a result, this argument is deemed forfeited due to Arden’s failure to provide
an adequate record for review. (See
647, 655–656.)
DISPOSITION
The
judgment is affirmed. Respondent is to
recover her costs on appeal.
NOT
TO BE PUBLISHED.
JOHNSON,
J.
We concur:
MALLANO,
P. J.
ROTHSCHILD,
J.
name="_ftn1" title="">[1] A portion of our factual statement is taken from the opinion in the
personal injury action, Gunnell v.
Metrocolor Laboratories, Inc. (2001) 92 Cal.App.4th 710, the opinion in
Gunnell’s action against Silas, Gunnell
v. Silas (Jan. 27, 2006, B180744), and the opinion in this action regarding
Arden’s special motion to strike, Silas
v. Arden (Dec. 31, 2009, B210297).
name="_ftn2" title="">[2] Other defendants in the case settled with Gunnell prior to trial,
as more fully discussed post.
